Ageism: How to Spot It and Fight It

When you're job hunting, is it age discrimination if the person interviewing you:

(a) Asks how many years you plan to work until you retire?

(b) Asks leading questions to get you to reveal your age?

(c) Asks if you'll have enough energy for the job because "people your age are usually slowing down"?

(d) Cancels the appointment after seeing the college graduation date on your resume?

As you may have guessed, it can be all of the above.

Age discrimination can be blatant, subtle or sometimes invisible to the person it's being perpetrated against. Due to the bad economy, the problem is rampant, says Leah Shearin, a Portland, Ore., employment attorney who represents workers in age discrimination cases and advises small employers on how to avoid them.

Older workers have a lower unemployment rate than the population in general--7 percent of people over 45 were unemployed in June, according to the U.S. Bureau of Labor--but it often takes them far longer than other workers to find new jobs.

Older job hunters often are vying for the same positions as people half their age, and in our youth-obsessed culture, prejudices against older candidates can lead to age discrimination, or ageism. That happens despite workplace safeguards outlined in the Age Discrimination in Employment Act, which applies to companies with more than 20 employees, Shearin says.

In an interview with SecondAct, Shearin offers an overview of the problem and how job candidates over 40 can shift the focus to highlight their skills and work experience.

SA: What is age discrimination?
LS: Whenever a person is judged on the basis of their age, without regard to credentials or experience, that's age discrimination.

SA: How prevalent is it?
LS: It's hard to know how much it happens because most of it is never reported. Often, people aren't aware that they're being discriminated against. The EEOC [Equal Employment Opportunity Commission] recently reported a 19.2 percent jump in the number of age discrimination charges filed since 2007. I would say that's a pretty significant increase. As long as the economy continues to suffer, we are going to see more instances of age discrimination. More people are getting more frustrated in their job searches and beginning to sense that they're not getting a job when their younger compatriots are. There is a lot more resentment, and that can lead to charges of age discrimination.

SA: What are the signs?
LS: If you're submitting a resume, that's the first place the discrimination can occur. Companies look at the resume and rule you out by guessing how old you are. The interview is next. If the interviewer makes remarks about your age, or asks you--and this has happened--"How much longer do you intend to work?" you know that person is looking at you as someone who's only going to be around for a short time.

SA: If you get asked that question, what's the appropriate response?
LS: If the interviewer starts making assumptions based on age stereotypes, you need to correct their assumptions. They may assume, for example, that you may not be aware of technological advances, so you can talk about all the things that show you are. If you think it's a lost cause, you could confront the interviewer. You won't get the job, but you'll get the satisfaction of telling them. If you feel it was unfair and age was a factor, ask to speak to their supervisor and complain about the inappropriate questions or remarks and ask for a second interview. I'm not saying it will help, but it's a way of getting the company's attention.

SA: Are there other recourses?
LS: You could file a charge with the Equal Employment Opportunity Commission, or in Oregon, the Oregon Bureau of Labor and Industries' civil rights division. (Most other states also have fair employment practices agencies.)

SA: What are someone's chances of winning an age discrimination case?
LS: The EEOC is so understaffed and overworked, most charges they won't investigate; they don't have the manpower to do it. In Oregon, if you file a claim with the Oregon Bureau of Labor too, the EEOC will defer to state investigators. The more information a person has to support an age claim, the more likely they'll get investigators to do their job. But again, in the interview situation, the prospective employee doesn't have a lot of information.

SA: If someone wins an age discrimination case, what do they get?
LS: The EEOC or courts rarely require an employer to hire someone, but there is monetary compensation, back wage and benefits and penalties. If it's willful on the part of the employer, you can get additional compensatory damages, penalties that could be equal to the amount of the lost wages. Employees can also file a lawsuit, and if they're successful, their attorney's fees would be paid by the company, as well.

SA: How successful are lawsuits?
LS: Age discrimination lawsuits are difficult to prove. The ones that go anywhere, with substantial verdicts, are rare. A recent U.S. Supreme Court case, Gross v. FBL Financial Services, makes it even more difficult to prove age discrimination under the Age Discrimination in Employment Act. In a 5-4 decision, the court held that an employee must prove by a preponderance of evidence that age was the "but, for" cause of the alleged discriminatory conduct. This means the standard of proof is now higher than it is in race or disability discrimination cases where an employee is only required to show that race or disability was "a motivating factor."

SA: What can job candidates do?
LS: If you're preparing a resume, leave off your birth date and graduation date. Include only your latest 10 to 20 years of experience. Leave out family information. During an interview, don't volunteer you're a grandfather of three. Dress in current styles; look like you're hip. Obviously, you don't want to mention any health problems or concerns about your health or energy level. Avoid disclosing information that shouts to the world how old you are. Show enthusiasm and energy; that goes a long way. When the economy was doing well, a lot of older employees were getting paid well, and when they interview for a job now, the employer thinks they'll leave the minute they get a better-paying job, whereas a younger worker is thrilled to get a job at any price. The older worker has to address that upfront. Say, "I know I was highly paid in the past, but it's a changed economy." You can do that without demeaning yourself or pretending you don't have the qualifications you do have.

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