Employment Age Bias: Seldom discussed, often imposed, tough to proveAge Bias: Seldom discussed, often imposed, tough to prove

Staying Legal

Employment Age Bias

Seldom discussed, often imposed, tough to prove

By Stephen Prentice

October 2004

Stephen R. Prentice

Stephen Prentice

Certain things in life are inevitable . . . as they say . . . taxes and death. Aging is also inevitable . . . we all will be old sooner or later. As most airline pilots, mechanics and flight attendants know, it seems to come sooner rather than later.

Most of us think of discrimination as involving race- and gender-based cases. The more subtle issue of age-based discrimination is clearly the most prevalent in industry today. You may not think so but it is true. There are many and varied reasons but most are based on salary levels, medical issues, and performance.

The client
A new client showed up recently and told the following story. He was an airline pilot and had recently retired from a major carrier. He turned 60 and had many years left to ponder what to do next. He became bored and after moving to a friendly climate he decided he would get another job. He noticed a job announcement for a customer service manager with an airline at the local airport and decided this would be a convenient way to simply stay close to the business he knew something about. It was not the same company he had retired from. The pay was only a token amount, but he did not need the money and was just interested in working at the airport. This seemed a good way to be involved. He applied and was called in for an interview.

The interview
The applicant said he showed up on time and chatted with the recruiter for 15 minutes. There seemed little question that the man was more than qualified, but he was over 60 and that was of course obvious. He was told that training would be required for the position and that he would be called in a week or so. There was no discussion of his age or any other factors that might suggest an age inquiry except for the obvious fact that he was 'retired'. Keep in mind that discussion of age is carefully avoided by employers because of the laws on the subject. Any suggestion that he was too old would be a grave mistake on the part of the recruiter. The man heard the usual 'we'll let you know' and heard nothing further regarding the position.

This would not be unusual and in fact is fairly common. We have heard several similar stories from older mechanics and others about follow-up employment information. Employers simply ignore you. They are instructed by their employment law attorneys to carefully avoid like the plague any reference to age. There is no particular rule that says they have to follow up, other than common courtesy. In fact, many human resources (HR) people use this technique to just 'blow off' an applicant and hope they don't raise a stink. I have been told that they feel it is better to avoid saying anything to the applicant or putting anything in writing that could come back to haunt them in some form of complaint. Equal Employment Opportunity Commission (EEOC) cases deal with situations involving reasons for employee termination and reasons for failure to hire. The laws apply to both cases with equal force and effect. In this example they simply did not want the man but did not care to say no to him in person. They would simply string him along until he got tired of waiting.

He visited again with the recruiter and was told that training for his position would be arranged but no date was set. He figured this was a fairly obvious fib but he left and asked to be contacted further. The company said they would call him. The man was never told he would not be hired.

Two weeks passed with no contact. He was getting irritated. He felt that another person or persons were hired instead of him and they did not want to upset him by telling him directly that he was too old for the job. He did notice some new faces and also the fact that all employees were mostly female and all under 35 or so he guessed. He did not see anyone he thought over 40. There is a good legal reason for this. Anyone over 40 would be difficult to terminate. The federal age discrimination law does not apply to those under 40. It was obvious that there was a practice to hire only younger people for these positions. If this conduct was unwritten policy it would be a clear violation of the law with serious consequences. Congress has stated that arbitrary discrimination in employment because of age is a serious matter that requires employers to be vigilant in this area.

If this man had an obvious disability of some kind I believe he would have a better chance of being employed. The law set out by the Americans With Disabilities Act (ADA) is much more aggressive and provides substantial redress for acts of discrimination or other disparate treatment of disabled persons. Older employees are also perceived to be more prone to accidents on the job and in general subject to medical problems while employed and thus are to be avoided when possible. They are considered a liability to the company. The employer's workers' compensation premiums could rise with the increased number of older employees.

What you can do Administrative Relief
State and federal laws provide recourse in these cases but do require time and effort to pursue. This is what employers count on. As with most legal avenues, the work involved is sometimes excessive. The cases can be tough to prove if and when they ever get to a court.

The administrative process at both the federal and state level sometimes can provide results without the necessity of hiring a lawyer or spending any money.

In California, for example, and in most other states, a complaint can be filed under what is called the Fair Employment and Housing Act (FEHA). A state commission can sanction employers for any form of discrimination including any discrimination for ones age. They will do most of the investigative work for you at no cost.

In addition, under federal law, a complaint can be filed with the EEOC. This agency can correct any evidence of uneven or discriminatory acts by an employer. You must file your complaint within 180 days of the discrimination conduct. There is no cost. These two administrative steps can many times achieve results for the applicant that might otherwise be too expensive or too time consuming. Simply filing the complaint, can often get results. On the other hand, where EEOC results are not acceptable, the applicant can still pursue any and all legal avenues, including a lawsuit in federal court.

Another factor deals with the time employers have to spend in responding to these administrative complaints. All too often, the employer has failed to put into place guidelines for managers to follow with regard to both hiring and termination practices. Where human resources departments are weak or poorly staffed, responsive action can be favorable to the applicant. Many times a job will be offered after filing the complaint. EEOC personnel are very helpful, at no cost to you.

Cases today
Juries today are awarding higher awards in age bias cases than in any other type of bias cases. Most of these cases deal with older people (over 40) getting laid off or fired rather than cases dealing with hiring. However, where people are laid off they often re-apply for a new position with the same company and are simply ignored.

From 1997 to 2003, the median award for an age discrimination case was more than $200,000. This means some were higher and some were lower. These were federal court cases. Where suit was brought in state courts the awards were higher.

Most observers say that winning an age bias case at trial is difficult. The chance of winning is roughly between 60 to 70 percent according to the statistics. Age discrimination claims that reach a court rely on the Age Discrimination in Employment Act, (ADEA) which is discussed below.

History: Federal discrimination law 101
The federal government has put in place several statutes that address discrimination in general and age discrimination in particular.

1964 Civil Rights Act
Of course, the mother of all civil rights legislation is the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin. The prohibition of sex discrimination, for example, in Title VII of the law, was generally relied on by female flight attendants to show that hiring practices were unfair and illegal. The complaints usually alleged age and looks bias. This section of the Act had the greatest effect on the industry and provided the basis for challenging most hiring and continued employment standards.

This Civil Rights Act did not specifically refer to age discrimination except in the context of flight attendants and their looks. However, the law states a prohibition against limiting, segregating, or classifying employees in any way that would tend to deprive one of employment opportunities. This broad language can include a variety of fact situations.

The 1964 Act also established the Equal Employment Opportunity Commission (EEOC) mentioned above. The EEOC hears complaints, arbitrates disputes and, if necessary, can file lawsuits in federal court for relief on behalf of applicants against employers.

There are exceptions to the law. Such exceptions include what are called bona fide occupational qualifications (BFOQ). The age 60 rule for air carrier pilots is an example.

Age Specific Law (ADEA)
The Age Discrimination in Employment Act of 1967 (ADEA) 29 USC 621-634 (1982-1988) was designed to address discrimination against anyone 40 years of age or older. The clearly stated purpose of this statute was to promote employment of older people based on ability. The Act attacked discrimination by establishing broad prohibitions against certain hiring and employment practices. Note that age-related appearance cases do not fall within the ADEA as it does under Title VII of the Civil Rights Act of 1964.

The law provides that employers may not use age as a basis for hiring . . .

'It is unlawful for an employer (1) to fail or refuse to hire or to discharge any individual . . . because of such individual's age . . .' 29 USC 631 (1988)

As originally adopted, the Act protected people in the 40 to 65 age group. The upper age limit has since been removed from the law. There is no upper age limit! The minimum age protected is still 40. All that the applicant need show for a prima facie case is that he or she is in the protected age group, that he or she was able and qualified to perform the job, was treated adversely, and that the employer gave the job to a younger person. (29 USC 554). In the case described it would not be difficult to maintain. At any trial the employer can defend the complaint by attempting to put forth a reason for the age discrimination that a court might find appropriate. In most cases they cannot.

The man mentioned above did complain to the EEOC. Since then the employer has called him and is presently discussing employment with him. He feels that they will give him the job he wanted in the first place or some similar position.

An EEOC complaint is a strong incentive to the employer to be fair. It costs nothing. There are no legal fees. Send your comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran. E-mail: aerolaw@att.net