Ageism at Urban Systems

Memo To: Paul Yu

From: Pat Robbins

Date: August 26, 2009

Subject: Ageism at Urban Systems

AGEISM AT URBAN SYSTEMS

AGE DISCRIMINATION

Ageism is systematically stereotyping and discriminating against employees because they are older. Ageism can be seen in the hiring and promotion of employees in the workplace. The problem is that age discrimination is hard to prove. If a prospective or current employee doesn't get a job or promotion, it is difficult to determine whether they were not chosen because of their age. They may not have been qualified for the job or it was evident that another candidate was a better choice for the position.

LEGAL IMPLICATIONS

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training (U.S. Equal Employment Opportunity Commission [EEOC], 2009).

Data suggests that age discrimination in the workplace is on the rise. In 2008, a record high 24,582 age discrimination complaints were filed with the EEOC, a 29 percent increase from 2007 (EEOC, 2009). Thirty-eight of the filed complaints in 2008 were resolved in federal district courts. It is interesting to note that many EEOC suits are brought on behalf of multiple aggrieved individuals (EEOC, 2009).

In 2003, EEOC won a historic age discrimination settlement, recovering $250 million in back pay for 1,700 public safety officers in California (EEOC and Arnett et al. v. CalPERS) (Fighting Ageism, 2003).

The EEOC also won a huge age discrimination case in 2007 against the Sidley Austin law firm in Chicago, which agreed to pay $27.5 million to 32 former partners (Elmer, 2009).

Despite the above mentioned high profile EEOC victories against age discrimination, the question still remains today, does the ADEA require direct evidence in mixed-motive cases? Circuit courses that have weighed in on the issue are split.

In Gross v. FBL Financial Services, Inc., the plaintiff was a 53 year old vice president who sued his employer, alleging that a change of his responsibilities was a demotion and that his employer's actions were taken because of his age. After a five day trial, a jury in the US District Court for the Southern District of Iowa found in favor of plaintiff. The defendant employer appealed to the Eighth Circuit, arguing in part that the trial court erred in giving faulty jury instructions on the plaintiff's burden of proof and persuasion under the ADEA (Lavin & DiMichele, 2009).

The question is would Gross have been demoted regardless of his age? The Eighth Circuit held that "a plaintiff must show by direct evidence that an illegitimate factor played a substantial role in the employment decision." (Lavin & DiMichele, 2009) The case highlights the problematic task of deciding what the correct standard is for mixed-motive instructions in ADEA (non-Title VII) cases, an significant legal issue that has been dividing lower courts for 20 years (Lavin & DiMichele, 2009).

ETHICAL IMPLICATIONS: PERCEPTIONS OF OLDER WORKERS

Although the ADEA was made into law in 1967, it still remains unclear whether this legislation has been effective in changing stereotypes within the employment context. Within the last 30 years, there has been evidence that management may discriminate based on age during the interview and selection process. (Morgeson, Reider, Campion, & Bull, 2008)

Age discrimination based on ageist stereotypes is common in work settings. In the workplace, older workers have a harder time finding and keeping a job, due to beliefs that they have lower job performance and productivity than younger workers. "Moreover, older persons suffer more from economic dislocations that may not be based on age, such as layoffs when companies close down and reopen under a new company name with nonunionized workers." (Yuan, 2007)

"In the workplace, the stereotype of inferiority presents mature workers as sedentary, technologically obsolete, less productive, disinterested in learning,