When I began this blog, I predicted that the big area of employment litigation for the future was age discrimination. Because of the sheer number of aging baby boomers, many would be retired or discharged, arguably in violation of the Age Discrimination in Employment Act (ADEA). When I made this prediction, I didn’t see the Great Recession coming.
An article in the New York Times by Motoko Rich paints a picture of rampant age discrimination. It’s not called that, but it’s right there staring you in the face. According to Rich, older laid-off employees may never work again. Job growth is so slow, it will take a long time to absorb the enormous number of the unemployed. As time goes on, older employees’ skills become less relevant to the new jobs being created, and they’re not in a position to stay up with rapid technology changes that young people learn in school.
Older workers suspect their resumes are placed at the bottom of a stack, so much so that they’re seeking the help of government and nonprofit groups to “age-proof” their resumes. The ADEA is supposed to age-proof a resume by making age discrimination unlawful.
Why aren’t age discrimination cases booming? A layoff provides one of the best ways to defend an age discrimination case. Proving age discrimination in the hiring process is always difficult, especially when hiring is occurring so slowly. It also seems that lawyers are skittish about suing for age discrimination unless they can find what appears to be a sizable class of older employees for whom one big age bias lawsuit can be filed.
Employers shouldn’t decide they’re off the hook when it comes to the ADEA, however. Employers must be sure they can articulate an objective reason for laying off certain employees or not hiring certain employees and prove that the reason has nothing to do with age.