Abstract
This paper explored age discrimination especially for persons above 40 years of age. The reasons why people are discriminated with respect to their age, where such discrimination is experienced, and who the victim and the perpetrator of age discrimination are were examined. Emphasis was put on the historical background of age discrimination in the United States of America and the progress being made in the protection of citizens against age discrimination. Age discrimination is discouraged in all fields and all places of work both nationally and globally.
Keywords: Age discrimination, employer, worker, employment, ADEA, America.
Introduction
Discrimination against older and middle aged employees has been a widespread vice in many American workplaces for ages. Age discrimination refers to the treatment of an individual, less favorably, mainly because of their age. This person may be an applicant to a job or an employee (worker). It is most rampant in cases where the victim is 40 years or older. The discrimination is not necessarily by a younger person; both the victim and the perpetrator of discrimination may be above the age of 40 years. In America, such discrimination is usually forbidden by the law. People of the age over 40 years are protected by the Age Discrimination in Employment Act (ADEA) that was enacted by the congress in the year 1967. People below the age of 40 are not protected by this act. However, some states have laws in place that offer protection from age discrimination to young workers.
Age Discrimination
At some point in time, a middle aged or older worker is likely to experience a decision at the place of work that affects their employment status leading to the sacking, demotion or even early retirement. Most of this time the worker is oblivious of the fact that they are actually experiencing age discrimination. They may fail to attribute this form of unfair treatment to age discrimination. There is a very thin line between other forms of unfairness and age discrimination. It is this distinction that an older worker must make before taking legal action against the firm. He/she may do this by finding out which discriminatory acts the law defines as age discrimination. They may also consider other cases of age discrimination where the worker petitioned the employer on in the court of law and won the case. But such documented cases are rare because most employers opt for out of court settlement and maintain that the contents of such a settlement remain strictly confidential (Truth Magazine, 2014).
The history of the emergence of the need to legislate and the consequent legislation of policies against age discrimination in the United States of America dates back as early as the 1930’s. The pioneer legislation was by the United States civil service commission that did away with the policies that set the maximum ages of entry into national employment in the year 1956. In 1964, an executive order 11141 was issued offering more protection to federal workers against age discrimination. However, the procedures that were to be used in handling age discrimination complaints from workers were not clearly laid down (Friedman 1984). In 1965, the Older Americans Act was designed. The main objective as stated in the law was “providing the opportunity for employment with no discriminatory personnel practices because of age” (EEOC, 2014). Its main aim was to encourage research programs to help those people that were aged, although, like the preceding executive order of 1964, it did not lay down clear administrative procedures of dealing with complaints from aged workers who experienced age discrimination at their place of work.
The federal actions that were passed prior to the ADEA did not achieve maximal effect. This is because the administrative procedures were not established in the acts. However, state statutes were passed between the year 1930 and 1960 such that by the end of this period, eight states had age discrimination statutes clearly documented. These statutes were usually part of the Fair Employment Practices Acts of the states (Truth Magazine, 2014). These statutes established commissions that sought reconciliation in cases of complaints of age discrimination. The commissions operated at the state level, and the resolution was usually through seeking court enforced orders to get the employers ceasing their discriminatory practices (Albert 1989, Friedman 1984).
Federal legislation on age discrimination was pioneered in 1967 with the Age Discrimination in Employment Act (ADEA). The act was passed by Congress and signed into law by the then president Lyndon B. Johnson. The law defined older workers as workers falling in the age group 40-65 years. Under the act, it was illegal for an employer to make employment decisions such as hiring, promotion, compensation, firing, job-assignment, training, layoff or benefits based on the age of the worker. The ADEA is applicable to employers who have an employee workforce of twenty or more employees. The Age Discrimination Act followed in 1975. The act protected from age discrimination all workers working in all activities and programs that receive financial assistance from the federal government.
Since its passing in the 1967, the Age Discrimination in Employment Act (ADEA) has undergone significant amendments. The first amendment was in 1978 followed by a second amendment in the year 1979, and finally a third amendment in 1986. The first amendment of 1978 extended the age range for those workers eligible for protection by this law from 40-60 years to 40-70 years. It also did away with mandatory retirement that was there for most workers working for federal institutions (Herz, 1989). The second change of 1979 led to the responsibility of administration of ADEA being taken over from the Department of Labor by Equal Employment Opportunity commission (EEOC, 2014) (Herz, 1980). This amendment amplified the power of ADEA and made this policy more efficient in dealing with cases of age discrimination in America. The final amendment in 1986 was where the upper age limit for the protected age group was eliminated. Consequently, mandatory retirement was scrapped.
Today, the enforcement of Age Discrimination in Employment Act (ADEA) is by the EEOC. Any person that experiences age discrimination and wishes to take legal action must first file a charge with the Equal Employment Opportunity commission (EEOC, 2014). It’s the role of EEOC to “eliminate any unlawful practice by informal methods of conciliation, conference and persuasion” (U.S. Code, section 626). After filing a charge, EEOC may dismiss the petition if it thinks the act by the employer was not a violation of the law. At this stage, the worker can still pursue legal civil action in court. In the case where the charge is not dismissed, EEOC may seek settlement by agreement of the two sides. The charge may be mediated by the EEOC if the two parties are interested. In the case where conciliation and mediation are unsuccessful, EEOC may decide to file suit. The possible ways of resolution are back paying, hiring, reinstatement, promotion, front pay or other actions that will “make the individual whole.”
In the year 2007, the economy of United States of America was depressed. The livelihood and employment of many citizens were affected. Unemployment rose especially for the older people who were often referred by the term Baby Boomers. Most employers were reluctant to hire such people as workers because they were deemed more expensive to maintain compared to younger workers. They were also considered lacking up-to-date skills. This is the new era of age discrimination although many people are oblivious to it despite its widespread nature.
There have been many notable cases where age discrimination has been petitioned and the case won by the complainant. The most notable one in recent times is that of Hawaii Healthcare Professionals vs. Debra Moreno that was resolved by U.S. District Judge Alan C. Kay in Hawaii. Debra was 54 years old then and working at the Maui facility of the business as the office co-ordinator (NBER, 2014). The owner ordered Debra to be fired on the basis that she looked old, sounded old on the telephone, was like a bag of bones and was not the person the owner wanted to represent her company. The case was investigated by EEOC that filed a lawsuit against the company on the grounds of age discrimination which was a violation of the ADEA. Debra won the case and was awarded $190,000. In addition to that, the judgement passed required the company to detest from any future age discrimination and issue procedures to address claims of age discrimination by the employees. The company was also required to train its staff on their rights where age discrimination was concerned and also train the supervisors on how to handle such complaints.
Age discrimination is an unhealthy vice. It limits the opportunities of many citizens. The effect of age discrimination trickles down to the dependants of the affected person. It is also demoralising to the victim, and it kills self-esteem of the victim. In the case where age discrimination occurs to a person that is still working, for instance being discriminated in matters of promotion, the productivity of such a worker is greatly reduced. We may have a situation where an aged worker has the capacity to contribute to the improvement in a senior position but due to preferential treatment because of their age, such positions will still go to the junior employees. Such an assignment of responsibility to workers, not by merit but only by the criteria of the age bracket in which they fall is the most common form of age discrimination at most American places of work.
Age discrimination usually leads to underemployment in the society and worse still, it also leads to unemployment. Underemployment occurs in the case where a worker has all the skills needed to do a certain job in a company structure, but due to their age they do not get to utilise their skills fully. Unemployment is a common case where one is laid off or even lacks to secure a job completely. Statistics show that, as the age of a worker advances above forty, the likelihood of securing employment diminishes. My mother was laid off in the company she had been working for 10 years. The owner of the company she was working for told her that he needed “young blood” in his firm and that the process was absolutely necessary. The case against the employer’s heartless act of direct age discrimination is pending. It is such vices that all employers should desist from in order to provide a level ground for all the workers in a firm. It is advantageous to a company if it desists from age discrimination. With age comes experience and invaluable skill accrued through one’s life. It is at this stage when the worker is even more resourceful to a firm. Avoiding age discrimination also brings diversity in the firm when we have workers of all age groups interacting in the same workspace and exchanging ideas.
Annotated Bibliography
Albert, Rory J., and Neal S. Schelberg. (1989). “Benefit Plans Redefined under ADEA.” Pension world, October, pp. 45-49.
Albert and Schelberg discuss some of the benefits outlined by the Age Discrimination in Employment Act. They study some of the past Age discrimination related cases and as such formulate some potential benefit schemes that can be adopted to compensate discrimination victims.
EEOC, (2014) Age Discrimination. Retrieved on March 5, 2014, from <http://www.eeoc.gov/laws/types/age.cfm
US Equal Employment Opportunity Commission has gone ahead to define age discrimination at the workplace. It reiterates that no person should be discriminated based on his/her age whether is in regard to hiring, termination, promotion, training and job assignment among others.
Friedman, Lawrence M. (1984). “Your Time Will Come: The Law of Age Discrimination and Mandatory Retirement”. (New York: Russell Sage Foundation).
Friedman discusses some of the past age related discrimination with particular emphasis to the executive order 11141 which went ahead to establish a legal basis for the protection of the harassment of individuals based on their age. He also talks about other legal frameworks such as the Older Americans Act that had been established to fight age discrimination in the United States.
Herz, Diane E. and Philip L. Rones (1989), “Institutional Barriers to Employment of Older Workers”. Monthly Labor Review, April, pp. 14-20
Herz and Philip endeavor to study some of the barriers that are hindering the total eradication of age related harassments at the workplace. They assert that there are some institutionalized practices which prevent individuals of different ages from exercising their individual competencies. They go ahead to lay down some frameworks that could be put in place to overcome some of these barriers.
NBER, (2014) Age Discrimination Legislation in the United States. Retrieved on March 5, 2014, from<http://www.nber.org/papers/w8152
The National Bureau of Economic Research has endeavored to study some of the legislations that have been put in place to tackle the issue of age discrimination. They start off by studying the development of age discrimination legislation dating back to the 1960s. They then go ahead to study the changes in terms of inclusions in the act as well as past court cases and how these cases have shaped the present day legislation.
Truth Magazine, (2014) Age Discrimination. Retrieved on March 5, 2014, from<http://www.truthmagazine.com/archives/volume34/GOT034097.html
The Truth Magazine explores some of the social underpinnings of age discrimination. It talks about how age discrimination has come off age since the 1960s. It also explores some of the lives of individuals who were victims of age discrimination and thus try to paint a contemporary understanding of age discrimination.
References
Albert, Rory J., and Neal S. Schelberg. (1989). “Benefit Plans Redefined under ADEA.” Pension world, October, pp. 45-49.
EEOC, (2014) Age Discrimination. Retrieved on March 5, 2014, from <http://www.eeoc.gov/laws/types/age.cfm
Friedman, Lawrence M. (1984). “Your Time Will Come: The Law of Age Discrimination and Mandatory Retirement”. (New York: Russell Sage Foundation).
Herz, Diane E. and Philip L. Rones (1989), “Institutional Barriers to Employment of Older Workers”. Monthly Labor Review, April, pp. 14-20
NBER, (2014) Age Discrimination Legislation in the United States. Retrieved on March 5, 2014, from<http://www.nber.org/papers/w8152
Truth Magazine, (2014) Age Discrimination. Retrieved on March 5, 2014, from<http://www.truthmagazine.com/archives/volume34/GOT034097.html
