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BarJournal LABOR & EMPLOYMENT

JULY/AUGUST 2015
feAtUre Age Discrimination and the

Baby Boom generation

Would You Recognize It If You Saw It?

BY ANN-MARIE AHERN

am frequently asked, “What’s the most these beliefs often permeate hiring, promotion To commemorate the 50th anniversary
common form of discrimination that you and termination decisions. of the ADEA, the Equal Employment
see as an employment lawyer?” People And unlike many other forms of Opportunity Commission (EEOC), in
are often surprised by the answer: age discrimination, we talk freely and shamelessly 2018, published a report, “the State of Age
I discrimination. I think that they expect about age. Judgments, often unconscious, are Discrimination and Older Workers in the
to hear something they perceive as more made based on age every day. We assess whether U.S. 50 Years after the ADEA.” As part of
sinister, like race discrimination or sexual behavior is “age-appropriate.” We often notice that study, the EEOC found that the share
harassment. The response I typically get is, and delight in pointing out a “May/December” of workers over the age of 55 has doubled
“Really, why do you think that is?” The answer romance. We make a sport of determining in the last 25 years. Even more striking, the
to that question is two-fold. First, we all get whether someone “looks good for their age” oldest group of workers, those over the age of
old (God willing). Not all of us are female or not so much. 65, is projected to grow by 75% over the next
or racially diverse, but most people in the Yet, when it comes to the workplace, the law 30 years. As the Baby Boom generation now
workforce will eventually become part of the somewhat naively demands that these well- spans from age 55 to 73, we can expect that
protected age group (statutorily defined as over marinated behaviors should have no role in many will be affected by age discrimination in
40). Second, age stereotyping is so prevalent our decisionmaking. The Age Discrimination the workplace, as people are working longer
and culturally accepted that many people do in Employment Act (ADEA), a federal law that today than in previous generations, either by
not view it as harmful. took effect in 1968, and our corresponding preference or necessity. Indeed, according to a
In nearly every context, our society values state anti-discrimination statute, ORC 4112, 2017 AARP study, 61% of those age 45 or older
youth and connotations of vigor, freshness, prohibit decisionmaking based on age in reported that they had seen or experienced
and strength that youthfulness evokes. In all aspects of employment, except in very age discrimination. In 2017, the number of

the workplace, age stereotyping occurs when limited circumstances where age is a bona fide age discrimination charges filed with the
older workers are perceived to be inflexible, occupational qualification. Although almost EEOC, 18,376, was four times more than the

harder to train, less committed to their job, every employer has a policy prohibiting age next highest protected class.
and less likely to remain employed for “the discrimination, it should come as no surprise As these numbers also suggest, age

long haul.” Although data suggests that each that stereotypes and age-related judgments discrimination is also tremendously under-
of these stereotypes is, on whole, inaccurate, commonly infect the workplace. reported. According to the AARP, while

most older workers have experienced or
seen age discrimination, only 3% make
perseverance (/pər-sə-ˈvir-ən(t)s/) noun. tenacity; resolve; a formal complaint either internally or
persistence in resolving disputes despite their difficulty. externally. Recognizing age discrimination,
even as a victim, is not always easy. Many
people erroneously believe that they need
. Jerome F. Weiss, Mediator a “smoking gun” in order to assert their
rights. The law, however, permits an age
discrimination claim to be built entirely out

Facilitating dispute resolution of circumstantial evidence.
At the most basic level, the construct
for individuals and institutions for proving age discrimination involves

Tel 216.589.9995 establishing a prima facie case consisting of
Fax 216.589.9723 a demonstration that the plaintiff is 1) over
www.mediate.com/mediationinc the age of 40, 2) was objectively qualified for

the job that he or she held, 3) nonetheless

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