Friday, March 5, 2010

Is age discrimination the "hot topic" we’re not talking about?

There are always numerous issues swirling throughout employment law, fighting to be the “hot topic” of discussion, be it health care, immigration or any other issue that sits daily on an employer’s plate. When the subject of discrimination comes up, most people probably think of race or sex. Not age. But think about the number of employees who would fall into the “baby boomer” category. Those individuals – born between 1946 and 1964 – have spent a significant number of years in the workforce. It becomes easy to see why age discrimination would have such a significant impact on the workplace but is it a hot topic?

According to EEOC statistics on workplace discrimination, the number of age-based charges filed in 2009 was the second highest ever. Out of the total number of charges filed (93,277), 24.4% or 22,778 were age discrimination charges. And according to a new survey by CareerBuilder, a significant number of mature workers are putting off retirement plans because of our less-than-stellar economy. The survey found that more than seven in ten workers over the age of 60 who said they were putting off their retirement were doing so because they can’t financially afford to retire. Survey respondents gave other reasons for delaying retirement, including not wanting to leave their job or workplace because they enjoy it and the need for health insurance and other benefits, but it’s important to consider what impact mature workers who remain employed will have on the workforce.

The EEOC found the issue of age discrimination compelling enough to have held a public hearing highlighting the “devastating impact” of age discrimination. The hearing included discussion on recent developments under the Age Discrimination in Employment Act (ADEA), including the effect on older workers of widespread layoffs, threats to employee benefits, and recent US Supreme Court decisions including Kentucky Retirement Sys v EEOC, 14 Penn Plaza LLC v Pyett, and Gross v FBL Fin Servs Inc.

“Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination,” said Acting EEOC Chairman Stuart Ishimaru. “Employers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations. As a result, older workers may be disproportionately selected for layoffs during reductions-in-force. To then make matters worse, evidence suggests that older workers who lose their jobs may have more difficulty finding another job than their younger counterparts, due to age discrimination.”

The EEOC is now seeking comments for a proposed rule addressing the meaning of “reasonable factors other than age” (RFOA) under the ADEA. This follows a Notice of Proposed Rulemaking (NPRM) on disparate impact under the ADEA. In addition to requesting comments on its substance, the prior NPRM asked whether the Commission should provide more information on the meaning of the RFOA defense. Most commenters supported addressing the issue and the EEOC is publishing a new NPRM on RFOA.

These are significant developments but have they made age discrimination the hot topic of discussion?

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