Article originally published in The Des Moines Register
By Robert Weiner and Daniel Khan
"Ageism is as odious as racism or sexism," Florida Rep. Claude Pepper, D-Fla., said in 1976 before his legislation (supported by Aging Committee member and then-Rep. Chuck Grassley) passed to eliminate age-based mandatory retirement and end discrimination in hiring and advancement (the Age Discrimination and Employment Act Amendments). While the nation is fond of debating improvements and changes to Social Security, both likely presidential nominees, Hillary Clinton and Donald Trump, promise to maintain and protect it. However, equally important to seniors are the economics and self-worth of their work. Being fired or demoted for age is unacceptable.
Age-related complaints have grown, not shrunk, in recent years. The Equal Employment Opportunity Commission reports that between 1997 and 2007, there were around 16,000 to 19,000 filings for age complaints. However, from 2008 though the present, complaints increased to 23,000 to 25,000 a year. An AARP survey found that two-thirds of workers between 45 and 74 have "seen or experienced age discrimination on the job."
A Supreme Court decision in 2009, Gross v. FBL. Financial Services, Inc., put the ADEA at greater risk, and the risk continues today. In 2003, Jack Gross noticed a memo at his West Des Moines insurance job that explained staffing changes. "I got this ahead of time, and it just jumped off the page. Everybody that they're naming here is my age or older. Nobody under 50 was getting demoted. The only promotions were people who were basically a generation younger than us."
Gross was 54 at the time and a vice president at FBL Financial. He sued the company and achieved victory in the lower courts. But the U.S. Supreme Court ruled on June 18, 2009, by 5-4 that the plaintiff most prove that age was the sole reason for discrimination.
As a result, hundreds of cases relating to age discrimination have been abandoned. "Personally, that's one of the things that I resent most," Gross says. "That my name is being associated with so much injustice and unfairness."
Beforehand, if an employee was fired or not promoted, the worker could raise age discrimination as an issue. Now, he or she must prove with absolute certainty that age was the primary reason for termination or failure to rise.
"Suing your employer for age discrimination is basically playing Russian roulette with your career future," says Paul Bernard, an executive coach for Next Avenue, a public and national media service for America's 50 and over population. "You burn your bridges and may never get hired again."
Pearl Zuchlewski, a New York-based employment lawyer, adds how time consuming the process is. "Most people want to get another job and not spend years in deposition."
Arguably, the biggest obstacle is cost. Deposition costs are as much as $1,800 a day. For Gross, the fee was $11,000 simply to print the documents relating to his case. You might be in a better off to negotiate a deal with your employer.
Dan Kohrman, a senior attorney at the AARP Foundation, asserts: "These kind of decisions scare off workers and lawyers. It's harder to prove an age case."
A bright spot is that more victories are being won in state courts, if not federal courts. California, Michigan, New York, and Iowa are some states that have better protections for older workers. Deborah Campbell, 63, a community program monitor for Iowa's 3rd Judicial District Correctional Department, was awarded $404,682 in 2014 by a Woodbury County district judge for age discrimination. In 2012, Dr. Zane Hurkin, 81, was awarded $340,000 by a Polk County jury for age discrimination at Woodward County Resource Center in Des Moines. But Korhman elaborates: "If you don't live in that kind of state, then it is tough. It is really tough."
Sen. Grassley and former Sen. Tom Harkin introduced bipartisan legislation to undo the Supreme Court decision of FBL vs. Financial Services in 2012, and last year Sens. Bob Casey, D-Pa., and Mark Kirk, R-Ill., introduced similar legislation "to clean up after Supreme Court decision that exposed older workers to discrimination," according to Think Progress, a federal-action monitoring blog. Grassley commented, "The decision in the Gross case has had a major impact on employment discrimination litigation across the country. It's time we clarify the law to ensure that other people like Jack Gross aren't put in similar situations. Older Americans deserve the protections Congress originally intended."
People 50 and older will be 35 percent of the workforce by 2019, according to the Urban Institute. With more cases coming in, there is pressure for Congress to act against discrimination and for the Department of Justice to put in place protections for seniors' job security. Seniors vote in the highest percentages of any age, so this not only makes good sense, but good politics.
Robert Weiner is a former spokesman for the Clinton White House and was chief of staff of the U.S. House Aging Committee. Daniel Khan is senior policy analyst at Robert Weiner Associates and Solutions for Change.