Abstract
This chapter discusses population aging, increased participation of seniors in the labor force in the United States (and reasons for this), and how these trends are making the struggles of older workers in the labor market increasingly relevant. Evidence examining whether age discrimination is a barrier for seniors as they try to increase their work lives through the common practice of “bridge” jobs is also presented. After discussing the evidence that measures age discrimination, economics and legal research that seeks to determine to what extent the federal Age Discrimination in Employment Act and state-level age discrimination laws prevent age discrimination is discussed. In summary, current evidence indicates that age discrimination exists, but more so for older women. While evidence suggests that age discrimination laws may help, they cannot resolve the challenges imposed by population aging, especially for older women.
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Notes
- 1.
For a discussion of the history of the ADEA at its 30th anniversary, see Eglit (1997).
- 2.
These trends may differ by race and race-by-gender. See, e.g., Lahey (2018).
- 3.
The hiring rate is calculated from Quarterly Workforce Indicators (QWI) data as the number of hires divided by employment for that age group and gender. This is calculated as relative to the hiring rate for men aged 25–34. A value of 50% means that this group has half the hiring rate of men aged 25–34.
- 4.
As supporting evidence, Figure 9.6 shows that mean unemployment durations were also generally increasing for older workers after 2000.
- 5.
Calculated by the author using 2015 data from the Current Population Survey, via IPUMS CPS (Flood, King, Ruggles, & Warren, 2015).
- 6.
- 7.
To be more specific, compensatory and punitive damages are not allowed under the ADEA, but “liquidated damages” are those which are available up to the amount of back pay for a willful violation of the ADEA. A violation is willful when an employer either knew it engaged in illegal conduct under the ADEA or the employer showed “reckless disregard” for whether it was prohibited. See https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/annualmeeting/004.authcheckdam.pdf. Neumark and Song (2013) classify states as having larger damages than the ADEA if they allow compensatory or punitive damages, regardless of if they require proof of intent or willful violation.
- 8.
The filing period for the ADEA for states without a law is 180 days, but is 300 days for states with a state law and enforcement agency.
- 9.
These are the dates of the Great Recession as determined by the National Bureau of Economic Research (NBER) Business Cycle Dating Committee. See http://www.nber.org/cycles.html.
- 10.
- 11.
The author’s calculations for this, using Current Population Survey data, are available upon request. Note that the effect of recessions on unemployment durations typically takes a few years to materialize, hence the 2012 peak.
- 12.
557 U.S. 167 (2009), decided June 18, 2009.
- 13.
“But for” the discrimination, the adverse employment action would not have happened. See http://www.constangy.com/communications-247.html (accessed June 5, 2017) for useful discussion.
- 14.
Under “mixed-motive,” the jury is instructed to rule for the plaintiff if they determine that the protected class was a motivating factor, even if other (legal) factors were also present. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
- 15.
Employers could use language that is suggestive that they want younger workers. This could be leveraging age-related stereotypes, requesting a candidate who is more flexible, able to learn, energetic, or better with technology, which are stereotypes associated with younger workers (relative to older workers) in the industrial psychology literature (e.g., Burn, Button, Munguia Corella, & Neumark, 2019; Posthuma & Campion, 2007). While these requests could be well-intentioned, as they are related to productivity on the job, employers could also use this strategy to intentionally filter out older workers. More aggressive examples are phrases such as “digital native,” which suggests that the ideal candidate “grew up” with technology. See, e.g., http://fortune.com/2015/05/04/digital-native-employers-bias/ (accessed March 29, 2019).
- 16.
In addition to this happening in Kleber, it seems common, especially in the tech industry. Other way this is phrased in job advertisements includes “Class of 2007 or 2008 preferred” (from a Facebook job advertisement) or numerous tech companies specifically requesting a “new grad.” See, e.g., http://fortune.com/2015/05/04/digital-native-employers-bias/ (accessed March 29, 2019).
- 17.
This could include searching for candidates only through job fairs hosted by educational institutions or posting the job ad only in venues that younger people use, such as social media websites, or using the tools of social media websites to only advertise job postings to younger candidates, either directly or indirectly. Many social media websites and tech companies allowed targeting based on age. See https://www.reuters.com/article/us-facebook-lawsuit-discrimination/facebook-ads-that-let-employers-target-younger-workers-focus-of-u-s-lawsuit-idUSKBN1EF09B (accessed March 29, 2019). This appears to be changing, as Facebook no longer allows age, gender, or ZIP Code targeting for housing, employment, and credit-related advertisements. See https://www.wsj.com/articles/facebook-axes-age-gender-and-other-targeting-for-some-sensitive-ads-11553018450 (accessed March 20, 2019).
- 18.
Case law showing that this is not allowed includes Thompson v. Mississippi State Personnel Board, 674 F. Supp. 198 (N.D. Miss 1987), Murdock v. B.F. Goodrich, 1992 Ohio App. LEXIS 6611, and Sherman v. American Cyanamid Company, 1999 U.S. App. LEXIS 21086. See McLaughlin (2018) for a discussion of these cases. Ventrell-Monsees (2014) also lists Johnson v. Napolitano, 2013 WL 1285164 ∗8 (S.D.N.Y., 2013) which cited Cartee v. Wilbur Smith Associates, Inc., No. 3:08–4132-JFAPJG, 2010 WL 1052082, at ∗4 (D.S.C. Mar 22, 2010); Block-Victor v. CITG Promotions, L.L.C., 665 F. Supp. 2d 797, 808 (E.D. Mich. Oct 13, 2009); Smith v. Board of County Com’rs of Johnson County, Kan., 96 F. Supp. 2d 1177, 1187 (D. Kan.,2000) (collecting cases); Luce v. Dalton, 166 F.R.D. 457, 461 (S.D. Cal. 1996); see also Kelly v. Drexel University, 907 F. Supp. 864, 875 n. 8 (E.D. Pa. 1995).”
- 19.
Some courts have recognized intersectional discrimination, such as Arnett v. Aspin, 846 F. Supp. 1234, 1241 (E.D. Pa. 1994), Grozynski v. JetBlue Airways Corp., 596 F.3d 93, 109 (2d Cir. 2010), Barnett v. PA Consulting Group, 715 F.3d 354 (D.C. Cir. 2013), DeAngelo v. Dental EZ, Inc., 738 F. Supp. 2d 572–578-79 (E.D. Pa. 2010), Good v. U.S. West Communications, 1995 WL 67672 (D. Or. 1995), Sogg v. American Airlines, 603 N.Y.S.2d 21 (NY App. 1993), and Foley v. Eckhart Richard-Allan Med. Inbus., 1995 U.S. Dist. LEXIS 20663 (C.D. Cal., Nov. 14, 1995), all discussed by Ventrell-Monsees (2014).
- 20.
For the first notable case (Black women), see Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1034 (5th Cir. 1980). For Asian women, see Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994).
- 21.
There is, however, a growing literature on how disability discrimination laws protect older workers (Button & Khan, 2019; Neumark, Song, & Button, 2017; Neumark et al., forthcoming; Stock & Beegle, 2004).
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Acknowledgments
I thank Sara Czaja, Emmarose Glaser, Raymond Peeler, and Cathy Ventrell-Monsees for helpful comments. I thank the National Institutes of Health and the National Institute on Aging for funding through a postdoctoral training grant at the RAND Corporation (5T32AG000244-23).
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Button, P. (2020). Population Aging, Age Discrimination, and Age Discrimination Protections at the 50th Anniversary of the Age Discrimination in Employment Act. In: Czaja, S., Sharit, J., James, J. (eds) Current and Emerging Trends in Aging and Work. Springer, Cham. https://doi.org/10.1007/978-3-030-24135-3_9
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