In February 2014, a Los Angeles Superior Court awarded Bobby Nickel $26 million in an age discrimination lawsuit against Staples Inc. Nickel's claim cited instances of harassment, derogatory name-calling and wrongful suspension from managers who tried to intimidate him into resigning. Nickel's experience is a troubling example of how companies nurture the belief that workers over 40 are incapable of making valuable contributions to the workforce. An increase in high-profile cases may force employers to rethink their hiring practices.
What Qualifies as Age Discrimination?
The Age Discrimination in Employment Act of 1966 establishes workers who are age 40 or over as a protected class, and the Equal Employment Opportunity Commission is the federal agency in charge of reviewing discrimination claims. The goal of ADEA laws is to prevent companies from excluding mature workers from the hiring process or dismissing them from existing jobs for age-related reasons. This includes discouraging workers from applying by peppering job posts with age-specific language, such as "recent grad" and "young blood."
For 64-year-old Nickel, the case was clear-cut. In 2008, Staples acquired the company Corporate Express, which had employed Nickel and shown satisfaction with his performance since 2002. Nickel was suspended for taking a bell pepper from the cafeteria, and staffers allegedly referred to Nickel as "old goat" and "old coot." A receptionist also admitted that she was asked to falsify a statement accusing Nickel of poor conduct, but she declined.
Fostering a Culture of Discrimination
Mature workers are wise to be wary of employers who stress a "youthful" company culture and justify their hiring decisions for branding purposes. In 2010, several TV networks and movie studios collectively paid $70 million in settlement arrangements with writers who accused the companies of excluding mature workers from productions marketed to younger audiences.
Similarly, Maria DeSimone, a 40-year-old experienced waitress, was passed up for a server position at Texas Roadhouse in 2009 in favor of a 19-year-old with no restaurant experience. In response to the pending class-action suit, Texas Roadhouse defended its questionable hiring practices by claiming that its requirements — such as wearing jeans, line dancing and working evening and weekend shifts — indirectly reduce the number of mature hires.
Employers are most at risk of facing discrimination claims if they demonstrate a pattern of negative behavior toward mature workers, including derogatory comments and bullying. In 2012, Debra Moreno was awarded $193,236 from a health care company after she was fired in 2008. Although Moreno consistently received high ratings for her work, she discovered that the company owner referred to her as a "bag of bones" and remarked that she sounded old on the phone.
Facebook settled a claim with the California Fair Employment and Housing Department in 2013 for stating a preference for 2007 or 2008 graduates in a job posting. At age 22, Mark Zuckerberg had previously drawn attention at a conference in 2007 when he stated, "Young people are just smarter."
When Age Discrimination Goes Unpunished
Age discrimination claims have increased over the past two decades. From 1997 to 2007, annual claims ranged from 16,000 to 19,000, compared to 23,000 to 25,000 annual claims from 2008 to 2013. Google settled a high-profile case in 2007, and as of 2016, the company is fighting a class-action suit that started in 2011.
Silicon Valley is infamous for finding clever ways to circumvent discrimination laws, such as using the term "digital natives" in place of "recent grads." While this loaded language does not specify age, it communicates a preference for millennial workers. Payscale data estimated that Google's average employee age is 30, while Facebook, LinkedIn and Apple rank at 28, 29 and 31, respectively.
Age discrimination complaints are difficult to prove, especially for job applicants who have little knowledge of how hiring decisions are rationalized. Many companies are also motivated to lay off mature workers because of their higher salaries, not their ages. A strong case must show evidence that age drove a hiring or firing decision, and the central ADEA laws only apply to companies with 20 or more employees.
Attorney Ingrid Fredeen, the vice president of NAVEX Global, cautions businesses against using language with strong age connotations, which can drive away qualified applicants even when discrimination was not intended. Employers should focus on screening candidates for the experience and personality they need to succeed in a position, rather than making assumptions about how mature workers think and interact in the workplace.
Photo Courtesy of Garlson Welland at Flickr.com
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