The workforce is aging, but older workers are at risk of being demoted or fired without repercussions. One recent legislative proposal is aimed at preventing that.
The Protecting Older Workers Against Discrimination Act (or POWADA, for short) would reverse a Supreme Court decision from 2009 that made it harder to claim age bias for a layoff or demotion. Reps. Bobby Scott, a Democrat from Virginia, and Jim Sensenbrenner, a Republican from Wisconsin, sponsored the bill in the House, and Sens. Bob Casey, a Democrat from Pennsylvania, and Chuck Grassley, a Republican from Iowa, sponsored it in the Senate.
“Age discrimination happens to everybody,” said Cristina Martin Firvida, vice president of financial security at AARP. “It isn’t a partisan issue.”
POWADA allows the complaining party to provide “admissible evidence,” which could be anything that sufficiently shows age discrimination. They also would not be required to demonstrate age was the sole reason for a demotion or dismissal. Courts would be able to grant an injunction, which stops an action from happening, but would be prohibited from awarding damages or requiring employers to reinstate, hire, promote or pay complaining parties.
The 2009 Supreme Court decision, on a 5-4 vote, placed the onus of proving age discrimination on the older worker. The ruling required employees to prove age was the reason for their dismissal or demotion, as opposed to prior practice when employers had to provide a legitimate reason for laying off or demoting an older worker.
But age discrimination is often difficult to prove, and can come in numerous forms, including comments about appearance, jokes about cognitive decline, or sidestepping qualified workers for a promotion. The Age Discrimination in Employment Act was enacted in 1967 to thwart these issues, but has not always been successful. “Despite decades of research finding that age does not predict ability or performance, employers often fall back on precisely the ageist stereotypes the ADEA was enacted to prohibit,” the EEOC said in its report. “After 50 years of a federal law whose purpose is to promote the employment of older workers based on ability, age discrimination remains too common and too accepted.”
The behavior is even more difficult to prove in the hiring process, as potential employers can list a host of reasons why they decided to choose another candidate over an older, experienced applicant. Workers in their late 50s and 60s have said they saw small indicators that companies were looking for younger candidates, by asking for high school graduation dates or stating in a job posting that their office has a “fun, party atmosphere.” Such prominent companies as Goldman Sachs GS, +3.10% and Amazon AMZN, -0.91% have been accused of placing job ads on Facebook FB, -0.88% that exclude older workers. Goldman, Amazon and Facebook did not respond to a request for comment by the time of publication.
Only 3% of older workers who experienced age discrimination in the workplace filed a formal complaint to their employer or a government agency, according to a U.S. Equal Employment Opportunity Commission report last year. But according to other studies, age discrimination is prevalent, with more than 60% of workers ages 45 and older having seen or experienced it, and another 90% who said that sort of behavior was common.
More than a third (35%) of the workplace will be 50 or older by 2022, and workers aged 65 and up are the fastest growing age bracket in the workforce, according to AARP. “We are looking to restore the legal rights older workers have had prior to the Supreme Court decision, so they’re treated no differently,” Martin Firvida said.
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