Age discrimination persists as federal law turns 50

The idea sounded right: there needed to be a federal law that barred employers from discriminating against older employees. (California had passed the Fair Employment and Housing Act (FEHA) in 1959.) The language struck all the right chords: Employers could not "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."

Yet age discrimination is alive and well today, even 50 years after the Age Discrimination in Employment Act (ADEA) of 1967 became law. The problem persists, and with baby boomers (born between 1946 and 1964) staying in the workplace longer and with Generation X (1965-1980) getting older, it's not going away anytime soon.

Today, the four largest companies in the world by market capitalization are Apple, Google, Microsoft and Amazon, with Facebook not far behind at No. 8. This is a dramatic shift from just 10 years ago when the list included Exxon Mobil, General Electric, Microsoft and Citigroup. And though the national economy has shifted over the past 50 years from industrial and manufacturing to knowledge-based and service-oriented businesses, the same issues that older workers faced back then continue to plague them today.

While they may be innovative in their fields and forward-looking with their vision of society, tech companies are not immune from the issue. A federal class action claiming Google engaged in widespread age discrimination in hiring was cleared to head to trial in U.S. District Court in San Jose this summer. Robert Heath v. Google Inc., 15-CV-01824. About 50 IT workers from UC San Francisco say they'll soon file a lawsuit alleging age and national origin discrimination, after their jobs were outsourced to India. The American workers were "overwhelmingly over the age of 40," while their overseas replacements are mainly in their early 20s, according to the outsourced employees' attorney. And just this past January, a San Francisco County Superior Court judge allowed a 63-year-old product manager to pursue an age discrimination lawsuit against Cisco Systems Inc. The plaintiff claims she was denied career opportunities and bonuses because of her age. Ann Bark v. Cisco Systems Inc., CGC16553651.

Sometimes older workers are pushed out the door because they are at the top of the pay scale, though this may be evidence age-based discrimination under California law. Hiring younger, less-expensive replacements helps the bottom line, preserving both shareholder equity and executive bonuses. It's also one of the most common forms of age discrimination - and perhaps the most difficult to prove, especially during reductions in force.

The number of age discrimination actions is likely rise, too, as an estimated 10,000 baby boomers turn 65 every day, according to a 2010 Pew Research Center report. As of 2015, about 33 million Americans over age 55 were in the workforce, and that demographic is expected to make up a quarter of the entire U.S. labor force by 2019. Nationally, about 20,800 age discrimination complaints were filed last year with the Equal Employment Opportunity Commission.

According to the Washington, D.C.-based Population Reference Bureau, there are 76 million baby boomers. There are about 66 million Generation Xers, most of whom already are over 40, and whose oldest cohort turns 52 this year.

So the age discrimination claims will keep coming, but they won't be easy to prove. For one thing, they're harder to prove since the U.S. Supreme Court ruled in 2009, in Gross v. FBL Financial Services, that plaintiffs have to demonstrate that a person's age is the motivating factor in being fired or demoted under the ADEA. Before that, a claim could be maintained even if age was just one among many factors.

Older workers face tough odds either way. When those laid-off older workers look for new positions, they find job-market portals where resume builder tools don't scroll back far enough to allow them to enter their birth year, or where algorithms discriminate based on keywords. It's also not unusual to find employment ads containing veiled phrases such as "digital native" and "new grad."

The ADEA does not include specific language addressing the legality of creating barriers to job applicants. That's the argument being used by plaintiffs' attorneys from a case filed against PricewaterhouseCoopers alleging ADEA violations by two older, experienced accountants, who are 47 and 53. They claim their applications were rejected because of PwC's alleged preference for youthful workers. The company argues that the law, as intended by Congress, applies to current workers and not college recruitment efforts. In February, a U.S. District Court in San Francisco declined to dismiss the case, reasoning that the ADEA prohibits employers from not only adversely affecting employees, but also from depriving an individual of employment opportunities based on the applicants' age.

California, as often is the case, was well ahead of the pack by including age discrimination in FEHA. The state law also covers more businesses than the federal law - every company with five or more employees versus 20 or more under the ADEA. And it includes language that bans employment agencies from screening out applicants based on age, and goes so far as to ban them from publishing any job advertisements based on age and requires them to refuse any client who asks them to do so. Facebook learned this in 2013, when it settled a lawsuit with California's Department of Fair Employment and Housing (DFEH) for posting an employment ad that stated "Class of 2007 or 2008 preferred."

Though California's statute and case law is generally more protective of employees, the 4,845 age discrimination claims filed with the DFEH in 2015 made up only about 7.3 percent of all 66,289 complaints made to the agency. That said, California legislators seem open to pushing age discrimination laws into uncharted waters. A recent effort to prevent the Internet Movie Database from revealing actors' ages, Assembly Bill 1687, was shot down in February.

Federally, AARP is pushing the Protecting Older Workers Against Discrimination Act, a response to the 2009 Supreme Court ruling that those claiming age discrimination must prove it was the sole or overriding reason behind an employer's action.

With the over-40 workforce increasing at the same time more people find themselves unable to afford to retire, it's likely more state and federal age discrimination claims will rise across industries.