Thank you for taking time to apply for the [Customer Service] position. We appreciate your interest and the opportunity to review your background, qualifications, and eligibility. .... While your skills are impressive and you have met the basic requirements of the position, we will be moving forward with other candidates ...The sender is widely considered to be a pretty good company. But it's useful for illustration: No matter who the prospective employer may be, regardless of the qualifications and experience of the prospective employee, the same scenario plays out day after day all over corporate America. To use a metaphor, it's almost as though there's an economic equivalent of the no-fly list for anyone beyond a certain age.
What we're talking about here is age discrimination and by some accounts, it's rampant in America today. But we're told discrimination is very hard to prove. One might think it's almost impossible to stop. In fact, too often, people who don't know anything about it will be happy to tell you there's nothing to be done. That nonsense. There are easy, low-risk steps you can take. Join me below and we'll talk about some of them.
There's a reason we have anti-slavery or child labor laws in the U.S. It's not because people can be counted on to do the right thing. It's because people can be invariably counted on to do horrific things, including enslaving other human beings or handcuffing children to work stations for 12 hours a day. But what's going on in the job market now is far less overt, far more subtle:
Companies don’t like to talk about it, but some job seekers, lawyers, researchers and people who help the unemployed say age discrimination in hiring exists. The Age Discrimination and Employment Act protects workers 40 and older, and forbids treating a job applicant or employee less favorably because of his or her age. But proving age discrimination is difficult, said Robert Canino, an attorney for the U.S. Equal Employment Opportunity Commission in Dallas.This is rarely policy per se, it's probably not even done consciously in many cases. It happens when the 20-year-old assistant manager at the fast food joint doesn't quite know what to make of the 45-year-old candidate applying for the advertised cashier job. It happens when the 31-year-old software engineer feels irrational dislike for the 55-year-old veteran standing in the reception room awaiting an interview. It happens when a company is buried in resumes after posting a job, and is looking desperately for any reason to reduce their workload to something manageable. Your degrees, certifications, or experience may help you survive those initial cuts. But there may come a point when your file comes up in front of a hiring manager staffing a team, they see your photo or DoB, and hand the file back to the recruiter saying "Get rid of this guy." These are all examples of potential age discrimination.
A U.S. Supreme Court decision in 2009 raised the burden of proof in age discrimination lawsuits. Now, a person must show that age was the determining factor leading to an employer’s action, not just a contributing factor. Still, age discrimination complaints related to hiring, firing and promotions increased 45 percent in the last 15 years, according to the EEOC. “What we do know from talking to people is that hiring discrimination is really rampant out there,” said Laurie McCann, a senior attorney for AARP.
There are three angles of attack on this. The first is to educate job screeners on both ethics and the law. Not only is age discrimination illegal, it's utterly counterproductive. I was in on plenty of hiring decisions in the past when I lived in Florida. Time after time, retirees, folks in their 60s, 70s, even their 80s, on Social Security and Medicare, were as good of a gamble as any other demographic. Age discrimination can also kill. I know of at least two middle-aged, talented, degreed, experienced people who were laid off and could not find work, who eventually died as a result of easily treated medical conditions. They didn't even know they had those problems, they hadn't been able to afford a doctor in years.
While we're on this topic, it does no good when close friends and family shame the unemployed. A minor imperfection is not open season to blame the person who got laid off and can't find work. I remember one case where the reason a person could not find a job—and ultimately died—somehow became their failure to have their priorities straight. That postmortem diagnosis was hung on the flimsiest evidence: The deceased had purportedly once said they wanted to get some used ski boots during the period they were looking for work. They never got any boots, they just mentioned one time to one friend they saw some advertised online.
What Was He Doing Wasting Time Looking At Ski Boots On Craigslist! Aha! That Explains Everything!
The second option is to use existing laws to file a complaint. Even in Texas of all places, where I live in near poverty thanks to underemployment and the inability to find a job that pays a living wage, we have the Texas Workforce Commission. Most states have similar orgs. In addition there is the Age Discrimination in Employment Act. Complaints like this don't always get filed away. They can generate investigations and lead to mediation or arbitration, where the employer has to appear, turn over internal documents, and answer questions under oath. I'm told this can be damn satisfying. Especially when the employer, who previously clammed up and wouldn't answer anything, sits there sputtering under repeated questioning, unable to back up any rationale for why that person was not hired beyond "We just didn't think he was right for this job ... that we hired three dozen other people for who all happened to be under the age of 35."
When you are unemployed or underemployed, your friends and family will often tell you to "keep trying, don't give up." The same applies to going after an employer who may have violated your rights. Keep trying, don't give up. It may not help you get that job (although it might, or it might help you win a judgement) but one complaint can mean everyone who comes along after you will have a fairer shot. Sooner or later, that person might even be you. Plus, you have no way to know how many complaints have been filed against that same company, or one person acting on that company's behalf. You could be the first or the hundredth, the latter looks terrible to investigators. It looks terrible to the company. If there is a bad apple, this how they are identified and removed.
Lastly, there are private practice lawyers who specialize in discrimination suits. Call a bunch of them. Share your experience on social media, see if there is someone who is interested in pursuing it for you, or others who have experienced it at that same employer. You would be amazed how fast those dominoes can start to tumble, indeed, how fast a company will throw it's own personnel under the bus, as the number of complaints and the evidence grows.
A few points to keep in mind:
- Senior management for most companies is looking for the most qualified people they can get for the pay offered, they don't usually give a shit how old you are. This kind of thing usually happens at the one-to-one, mid-management level far below them.
- It is rare for someone to be genuinely dropped from consideration because they are "overqualified." If it does happens to you or you see it happen to others, I've been told by experts it might well be an instance of discrimination.
- There are not many jobs where being under age 40 is legally justified. Writing code, driving a delivery truck, making sandwiches, talking to customers on the phone, etc., are not generally among them.
It's reasonable that the company's management has to be aware a problem really exists if they are going to address it. We have to be willing to step up and use the tools that those before us fought for and in some cases even died for. And in the rare case where it is systemic, if age discrimination or any kind of discrimination really can be shown to be policy or culture, spoken or unspoken, the only way we stop it is to expose it.