Monday, July 20, 2009

Age Discrimination Research Paper

Age suits are now the fastest-growing category of discrimination complaints filed with the United States Equal Employment Opportunity Commission. In 1967 when congress passed the Age Discrimination in Employment Act (ADEA), the worry was that older workers were being discriminated against in hiring. One might say that the ADEA might, itself have a disparate impact on the older employees of the age forty and above. Because of the competitive job market, employers are not only looking at the qualifications of an applicant, they also may be looking to see if there is any gray in your hair. Times are changing for the work force above forty that require more specialized skills. Companies are leaning more towards computers, email, and the Internet to be more competitive. In the past it used to be you could not get ahead because of the "glass ceiling", now it is more like the "gray ceiling". The aged work force must take personal responsibility in job hunting, because looks can be an asset or detriment. Experience is no longer a prerequisite for an offer.

The U.S. congress passed the ADEA, thinking it was going to protect workers of forty years old and above during the hiring phase. Yet only ten percent of the claims involve the hiring process, the other ninety-percent is wrongful discharge. People are quicker to sue an employer if they were fired rather than during the hiring process. Proving a case for wrongful discharge would be much easier than trying to read someone’s state of mind during the interview. In an article by Ira Carnahan, she brings to light an interesting fact; the first decade after passage of ADEA, unemployment among workers fifty-five and above rose from 2.5% to 4.6%. A possible reason for the rise could be computers in the workplace or employers are becoming more sensitive with their aging workforce.

Companies wanting to evolve to the next level to be more competitive are using computers and other high-tech software to rival its competitors. About twenty years ago, this was not very important. There was a high cost involved for the purchase of computers, software, support, and, companies were not that quick to jump on the bandwagon. This could very well be the reason for the sharp unemployment rate with the older employees, because of their inability to change. Today most senior and, midlevel managers are more adept with high tech machines, and software than their counterparts of years ago. You would think this would no longer be an issue for drastic increase of senior employees being asked to leave. Technology is changing so fastly that it is almost impossible for senior employees to keep abreast on the newest versions of software, and computers without the aid of a company-training program. Younger, and more technologically-advanced employees are waiting in the wings to fill the positions of the not-up-to-date senior employees. Companies now have the added responsibility to keep past employees informed of change or this could lead them down the path to an age discrimination lawsuit. If jobs open up in the near future, older employees must be given a chance to bid for the opening rather than going to a younger less expensive employee.

Businesses now have an opportunity to address the issue of change in the workplace by being more sensitive and not trample on seniority rights. This sensitivity from employers result in a severance package or other benefits. Severance packages are used when there is a change in management direction or economic downturn. These packages need to make sure they fill all legal requirements, which must include the following:

o Be part of a written clearly understood agreement.
o Refer specifically to ADEA rights or claims.
o Apply only to legal rights or claims before the effective date of the waiver.
o Offer something of value beyond what the employee will already receive.
o Advise the employee in writing to consult an attorney.
o Allow the employee 21 days to consider the agreement, or 45 days if the waiver
involves exit incentives offered to a group of workers.
o Allow a period of at least seven days during which he employee can revoke the
agreement. (HR Focus, p2)

The employee must believe that the employer fired them based on their age. A Prima Facie Case must be proven to proceed. Prima Facie means alleging of facts that fit each requirement of a cause of action. The following element must be available to persuade a court for age discrimination.

o They are in a protected class.
o They were terminated or demoted.
o The job was being done well enough to meet employer’s expectation.
o Others not in the protected class ere treated more fairly.

An employer may present his case in a several ways why an employee was terminated. First reason of a termination could be a Bona Fide Occupational Qualification. This means that it is necessary to the safe operation of a particular business. A good example would be the termination of a fireman or police officer. The reason a mandatory retirement is required is that this position is a BFOQ. Lastly, the discharge or otherwise discipline an individual for a good cause. The EEOC require that a reasonable factor be job-related. A policeman doing his job has many responsibilities to himself, partner, and citizens. They are tested everyday for strength and endurance, because of the criminals to chase on foot, or place an individual in a submission hold for the protection of himself, victim, and other bystanders. A job related discharge could be the employee not following standard operational company policy. The policeman may have been told, warned and wrote up on occasion for drawing his service revolver when no danger was present. Company policy expressly prohibits this behavior.

The employee sued on the grounds that pilots upon reaching age sixty are incapacitated and can no longer even perform as a flight engineer. Western Airlines argued that this was a BFOQ for the safe operation of business. Older pilots usually take a flight engineer position after reaching sixty years old. In was the contention of Western Airline that any pilot over the age of sixty should be put out to pasture. A flight engineer’s duties are not as critical as that of a pilot, so the reflexes and mental alertness was not a BFOQ. The U.S Supreme Court found Western Airlines BFOQ did not meet reasonable necessity required for proof of discharge, rather than a defect of the instructions from the lower court. (Employment Law For Business, 419)

Economic concerns are other reasons a company may want to terminate employment with senior personnel. As a rule of thumb, employees with a high tenure make more money than their younger counter parts, and are tempting target for a company to prune the largest branches from the tree. When a company is considering to layoff personnel as a result of a reduction in force, they must be careful, for example salary and seniority can be linked together therefore; seniority becomes a proxy for age. A termination based on economic factors may constitute impermissible discrimination. If an employer needs to consider layoffs they need to ensure that decisions are reached in an equitable and fair manner. Once a former employee whose status is "laid-off" the company must ensure they are notified of future vacancies and their right to file a discrimination lawsuit if not rehired. If the employer is at an impasse of who to rehire or terminate among equally qualified individuals, using seniority to solve the decision will help them avoid age discrimination lawsuits. (Employment Law For Business, 436)

Companies have a great responsibility taking care of their personnel and hiring potential workers in a fair and equitable manner. We may feel there was age discrimination in the hiring process, but how can we control what the interviewer thinks and perceives? There is a certain amount of responsibility all candidates must have to lessen the chance that age discrimination will factor into the hiring process. Just because you may be old, and look old doesn’t mean you no longer have control of the hiring process.

What can an overweight, gray haired, unemployed, white male, with sixties-style person do to lessen the potential of age discrimination? Human Resource managers are always looking for the right person to fill positions within the company. The old saying of "Clothes makes the person" is not unreasonable. The first impression of a hiring manager is the visual information from the prospective employee and how it is packaged.

Get rid of the disco, or sixty’s clothes and select a conservative black suit that is more of this era than the clothing styles twenty years ago. Clothing that is out of style can put a damper on the applicant just like gray hair. Gray hair is naturals way of saying you have been around the block a few times, or distinguished and have the knowledge of the world. I have salt and pepper hair, probably more salt than pepper but if I have can get a position with a company knowing what gives me an edge is thee color of my hair; a trip to Wal-Mart or Rite Aide for the answer. By going to the aisle that has hair coloring, you just increase your chance to get the job by fifty eight percent over your competition. A conservative hair cut, and color shade of the hair will have a larger impact on the interviewer perception of your value.
Our lifestyle has changed from a leisurely trot to almost a full gallop. In the past sending a letter in the mail usually took three to five days. Now the same letter can be received in seconds via email. Unfortunately, the fast pace of work and how we fuel our bodies are erriely similar. We want to eat our lunch now but never had the time to fix one. To much fast food lunches can adversely effect your waist line, and give the perception to a hiring manger that you are not healthy. Just because we are older does not nessicarly mean we are much wiser. We can no longer eat anything we want and expect it not to show up in some form around our waist.
Wrinkles, gray hair, and being overweight has a high impact of a lasting first impression, with a hiring manager.

The last part we have no control over would be gravity. Yes, a law this course does not cover but is universal for all. Keeping a daily or weekly schedule of toning the muscles can greatly reduce the signs of aging. A muscle ignored when lifting weights or running is the one between your ears. If you want to be more competitive in the technological changing environment you must try to stay abreast by reading or going back to school. Diploms or certifications will propel you to the top of the "to hire" stack.

Age is starting to become a Bona Fide Occupational Qualification for companies that want to maintain a cutting edge in their field. With the exception of police officers or firemen, a BFOQ policy can discriminate older employees thereby, preventing personnel from helping the business to reach its goal. Often, businesses look at the bottom line before looking at the resources that are available. Older employees could be a diamond in the rough just waiting for the opportunity to solve problems. I do not see any immediate policy change in the hiring practices of companies in the future. Technology is advancing at an alarming rate, and places a demand for companies to change or be left behind. Companies that listen to internal input of senior advisors may be more prone to stay at the top of technological curve rather than adding new employees with "know-how" but no experience. An older employee may have snow on the roof, but it doesn’t mean their fire is out.

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1 comment:

  1. It is quite true that there is rampant age discrimination in high tech, partly b/c of cultural prejudice in the industry, partly because of the cutthroat drive to keep wages and health care costs low. I'd like to see more investigation into how this is affecting young people's career choices. You hear a lot about how young people aren't going into engineering because of weak math education, but I think it's mostly because many young students see the writing on the wall, and very rationally choose a career where they won't be layoff fodder at forty. My husband is a EE/ME, and I am a software engineer, and we are discouraging our kids from choosing tech because they really need a career that will last them their working lives. We personally know many high school and college students who shun engineering not because they can't do math, but because they've seen their Dads work very hard for years, only to become unemployable in their forties and fifties. This must change, or we will have more and more young kids turning away from tech for very rational reasons.


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