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Keeping You Out of Job Owing to Age Discrimination

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The Age Discrimination in Employment Act (ADEA) protects all aspects of employment, including hiring. Warning signs of possible age discrimination in the hiring process include any or all of the following:

  • After expressing an interest in you on the phone, a prospective employer rejects you after an interview because you are "overqualified."
  • An employer advertises for "recent college graduates" or "people with three to five years experience."
  • An interviewer asks such questions as "How old are you?" "When do you plan to retire?" "Do you have any health problems?" or "Do you mind working with younger people?"

  • A younger person with the same or fewer qualifications is hired instead of you.
But remember, an employer's just asking you an age-sensitive question doesn't mean the person won't hire you. He or she may simply be unaware of ADEA regulations and honestly curious about how you would interact with younger people, or whatever. By now you know the interview is a very subjective evaluation. Rather than expending your energy in the interview trying to catch the employer asking an ageist question or worrying or analyzing why he or she did, pour all your energy into presenting yourself in a positive manner. That way, the interviewer - even if he or she does have an age bias - will not be able to group you with all other older people because you will have demonstrated your remarkable uniqueness. Then, after you have the job and are part of the system, you can work to change the age discrimination and stereotyping that exists there.

I suggest this for two reasons. One, it's hard to prove age discrimination in the hiring process. For one thing, it will be almost impossible for you to find out who was hired. You won't have access to that person's resume or application to compare with yours. And the reason given to you for hiring someone else will never be "because he/she is younger." It will be much more difficult to quantify: "better education," "willingness to travel," "better references," etc.

Two, I know you can get a job by enthusiastically presenting yourself to a prospective employer. Perhaps not the first employer or the second or maybe even the 20th, but somewhere out there is a job matching both your skills and interests. Somewhere out there is an employer anxious to meet you.

Seeking Justice

What recourse do you have if you feel you've been discriminated against? For starters, you must file a complaint with the proper federal or state agency within 180 days of the discriminating event. In 1979 the responsibility for enforcement of the ADEA transferred from the Labor Department to the Equal Employment Opportunity Commission (EEOC). In addition to the EEOC, each state can have its own age-discrimination laws and an agency to back them up. Phone your local or regional EEOC to determine the best method for filing your complaint. Either your state agency or the EEOC can investigate on your behalf and will determine "probable cause for crediting the allegations" or "lack of probable cause." If the finding is "probable cause," the agency will hold a face-to-face conference with you and the employer and attempt to reconcile the matter first.

If reconciliation fails, you may want to take the claim to court. While the state or federal agency can represent you in court, those profiled in Forced Out were disappointed with the legal advice they received. So you may want to hire your own lawyer. If the suit is class-action, you stand a better chance of winning. Jury-ordered remedies have, to date, included reinstatement, back pay (wages lost up to judgment), front pay (prospective wages in lieu of reinstatement), and attorney's fees and costs.

But often it's not enough to simply feel you've been wronged. There are all sorts of "wrongs" in our society. The law does not guarantee "fairness," but only protection against unlawful behaviors. For you to win a case, age must be the determining factor. The fact that management cleaned house (you, at age 55, being among those who were swept out) or that you had a personality conflict with your boss, who blocked your advancement is not sufficient to establish a case for age discrimination.

Eugene Goodman, an international marketing executive, won a case against his employer after he was passed over four times in favor of younger men when he had been promised a vice presidency. It took him six years and his life savings, but he was awarded more than $450,000 by the jury. In 1983 he published his litigation experience in All the Justice I Could Afford.

More recently, Elizabeth Layman, a former software marketing specialist for Xerox Corporation, sued the firm charging age discrimination. In 1986, when she was 43 years old, she agreed, at company request, to transfer to California in a comparable position. She made her plans and sold her home. At the last minute she discovered the transfer was to an entry-level job at a substantial pay cut, and she declined it. Her position in Dallas was later filled by a man seven years younger than she. The case took four years in court, but when she won, she won handsomely-she was awarded $8.75 million in punitive damages, $145,000 in back pay and lost benefits, and nearly $140,000 in compensatory damages. (Ironically, Xerox is one of several major companies that have been heralded for innovative phased-retirement programs.)

If called in by the EEOC, your employer may attempt to modify and/or falsify your evaluations, so document every-thing: memos, meetings, written offers, copies of all evaluations and reviews, notes of any comments that indicate a culture or environment that promotes age discrimination, etc. You'll need it because it's a case of David versus Goliath-and guess who's David?
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