Age Bias Ruling: Older Job Candidates Not Protected by Age Bias Laws

Published March 4, 2019

A recent U.S. Court of Appeals for the Seventh Circuit ruling dealt a blow to older job seekers, a cohort that often sees discrimination in labor practices. The ruling restricts age bias claims under the Age Discrimination in Employment Act (ADEA) to those already employed, leaving the thousands of older American job seekers without recourse for potential discrimination.

With a growing number of Americans working well past the traditional retirement age, this ruling allows hiring authorities to dismiss older applicants who may be searching for a job because they experienced age discrimination leading to their job separation in the first place, according to one workplace authority.

“This ruling further hurts older workers who may have experienced age discrimination in the workplace that resulted in a forced retirement or layoff. They now have to contend with a job market that further obstructs their job search efforts,” said Andrew Challenger, Vice President of global outplacement and executive coaching firm Challenger, Gray & Christmas, Inc.

In 2017 alone, over 18,000 complaints were filed with the Equal Employment Opportunity Commission (EEOC) under the ADEA. An analysis of data from the Health and Retirement Study (HRS) by ProPublica and the Urban Institute found that of respondents with otherwise stable, long-term job situations, 56 percent left jobs at least once under financially damaging circumstances after turning 50 and before leaving for retirement, indicating forced exits rather than voluntary ones.

Of those, 28 percent experienced a career disruption due to a layoff and another 13 percent experienced an unexpected retirement.

“Older workers already deal with multiple stigmas associated with their age – they demand too much money or they have difficulty learning new technology. These myths create another hurdle for older job seekers during an already stressful job search process,” said Challenger.

“Not only do they have to prove to hiring managers that they have the requisite skills and experience, but they also need to somehow demonstrate that they do not fit these stereotypes, all while making a strong first impression,” he added.

“Not only will this ruling potentially increase the discrimination older workers face, but it could leave companies open to brain drain, as the skills and accomplishments of older professionals contribute to growth and development. The channeling of older workers out of the labor market, especially skilled workers, damages the economic health of the country,” he added.

There are currently nearly 37 million workers aged 55 and older in the U.S. labor force, up from nearly 35 million at the start of 2017, according to monthly employment figures from the Bureau of Labor Statistics. This age group is currently experiencing a 3.2 percent unemployment rate, down from 4.0 percent in the U.S. overall.

“Dismissing older job candidates is a huge loss of experience and talent to an organization. To the hiring managers who see it as ‘taking a chance’ when hiring an older candidate, that is simply not the case,” said Challenger.

In addition to the sheer breadth of experience older professionals bring to a role, the soft skills that many companies seek in their workers and leaders, that younger counterparts potentially lack, have been cultivated over an entire career with an older candidate.

“Meanwhile, older workers have contended with the implementation of new technology for decades, especially those who are in the labor force now,” Challenger added.

Challenger offered the following tips to older job seekers:

• Do not apologize for being over 50 (far and away the most important point). Never say the following phrase again: “Nobody really wants to hire someone who is over 55.” You cannot have a defeatist attitude or it will show during the interview. Employers want to hire people who are confident in themselves and their abilities, regardless of age.
• Mention work experience that demonstrates your flexibility and creativity to counteract stereotypes that suggest those over 50 are not adaptable or do not have enough imagination. Point out new programs you developed or improvements you suggested which made an impact on the company’s bottom line.
• Stay current and embrace technology. If you are not comfortable with the technology and programs utilized in your line of work, take a class at night. Do not be afraid of new technology. It is integral to every business function, including sales and marketing, finance/accounting, human resources, purchasing, and operations. Employers do not want to spend time and resources teaching new employees how to use the technology in their fields. They need employees to hit the ground running.
• Do not mention accomplishments that you made more than ten years ago unless they are extraordinary or the only example of experience you possess that meets the employer’s needs. If you do mention a past accomplishment, talk about it as if it happened today.
• Do not talk down to, patronize, or become convinced that you could not work for a younger manager. It is no longer the case that your boss will always be older than you. You do not want to convey the idea to a prospective employer that you would be uncomfortable as a subordinate or as a peer to someone with less experience. If you have a problem working for someone younger than yourself, resolve this conflict immediately, as odds are the jobs you want or for which you may be interviewing involve working for people who are younger than yourself. It is a reality you have to accept and deal with effectively.

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