As more adults return to workforce, officials say they see more cases of age discrimination

By Aaron Gifford

With this major recession, age discrimination claims are rising across the country, throughout the state, and in the Rochester area.

Last year, there were 117 age discrimination complaints registered with the state Division of Human Rights from people in Rochester, Ontario and Orleans counties. That’s up from 103 the previous year and 102 in 2007, when the first signs of economic slowdown were reported.

For Monroe County alone, the number of age discrimination claims filed with that state agency increased from 93 in 2008 to 105 last year. Twenty-two claims were filed in the first four months of this year.

Statewide, the number of claims with the Division for Human Rights increased from 1,296 in 2007 to 1,423 last year.

The state Division of Human Rights handles complaints through a multi-faceted process that can involve negotiations between the two sides or a final hearing and a decision through an administrative law judge. Not every age discrimination claim in the state is brought to that agency; some matters are handled entirely in the civil court system.

A federal agency, the Equal Opportunity Employment Commission, deals with claims in a similar fashion. And those who allege age discrimination can still pursue their case in court if they are unsuccessful with either agency. Cases cannot be brought to a federal court unless the litigant first submitted a claim to the EOEC or a similar state agency, but there is no such restriction for filing an age discrimination suit in state court.

The Age Discrimination in Employment Act of 1967 protects individuals 40 and over from being laid-off, fired, demoted, or not promoted or hired solely on the basis of their age. That federal law does not apply to those younger than 40.

According to the Equal Employment Opportunity Commission, age discrimination allegations reached a record-high last year as 22,778 claims were filed with state or federal agencies. That’s up from 18,103 two years prior (2007) and 14,141 a decade prior (1999).  Those totals don’t include cases filed in state courts with no involvement with a state Division for Human Rights agency.

Steven Modica, a Rochester-based attorney who specializes in employment law and formerly chaired the Monroe County Bar Association’s labor and employment discrimination committee, said despite the recession, an increase of age discrimination cases should be expected as people are living longer and working longer.

“Consequently,” he said, “there are a lot more people in the work force 55 and older than there was 10 years ago.”

This trend could continue past the recession. The existing work force is aging as employees are retiring later due to decreasing investment funds during the past several years. To cut costs, companies often target older workers who have larger salaries and compensation packages due to raises and benefits like sick time and vacation pay accrued during a career.

“If it’s for economic reasons it’s not illegal,” Modica said. “It’s not illegal to want to take out the fewest number of people. Companies may get rid of those who have built up seniority and years of pay raises.”

Nationally, 62.3 percent of age discrimination cases filed last year were closed on grounds of no reasonable cause. About 9.4 percent of the 22,778 complaints filed that year with state or federal agencies were settled, according to the EEOC.

Stefan Berg, a Syracuse lawyer who represents age discrimination plaintiffs all over the state, cautioned that some of those figures may be misleading. He estimates that 95 percent of age discrimination claims are settled “before an official decision (judge) maker gets involved.”

The EEOC also reported that $72.1 million in awards was paid out to age discrimination complaints last year who filed cases with state or federal agencies like the EEOC or New York State Division for Human Rights. That figure doesn’t include litigation awards determined by courts.

Berg said he was involved in a recent case where 4,000 employees at a large upstate New York employer proved instances of age discrimination, though he said terms of the litigation restrict him from naming the company or other details about the case. He believes age discrimination is widely under-reported, though many employers and personnel managers may not be aware that they’re breaking a federal law.

Code words for age discrimination, he said, include employees who are deemed “not up to date, not current, or not computer literate.” Berg adds, “A lot of my clients hear things like that often.”

Age discrimination is a common problem in the application process. In these tough financial times, Berg said, “a lot of people who apply for jobs have great resumes and they’re being rejected without knowing why.”

But it’s very difficult to prove that age was the sole reason that you were not selected in a competitive pool of applicants, Berg said.

“There are so many applications for every position now,” he said. “In order to make your case, you would need the resumes of everyone else who applied. That could be 75 resumes. The litigation would be quite costly.”

A 2007 decision involving a Cornell University employment dispute provides a good example of the difficulty in proving age discrimination. In that case, a 63-year employee who had a PhD from Cornell applied to serve as curator of the South Asia Collection after having served as a serial assistant in that department for over 20 years. The position became available in 2002 when a senior curator ended a long career there after a dispute with other department heads.

The claimant, Omar Afzal, was not recommended for an interview but was later granted one after he complained about it.

Ultimately, the person hired was 28 years younger than him. That candidate, Adna Malik, who came from the University of Chicago, hadn’t yet completed his master’s degree at the time of hire. And one of the hiring committee members admitted that when the job was posted he told others that he “was looking for half the (retired) incumbent’s age with twice the incumbent’s energy,” according to case documents.

Hiring committee members testified that Afzal was hired because of the excellent work he did as the curator of the University of Chicago’s Asian Studies department. They testified that he is “a team player, easy to work with and willing to take on new assignments.” They said Afzal was “ornery, prickly and combative.”

After Malik was hired, Afzal was given a pay increase and an “equity payment.” Cornell officials also offered to create a new position for him within the department, but he declined the offer and later resigned, according to case documents.

The case was dismissed two years after Afzal’s resignation. Decision papers noted that even though Afzal’s resume included his date of birth, 11 of the 13 applicants for the job did not note their ages. Committee members also testified that age was not discussed when they weeded out applicants. “The complainant did not establish that his age or Malik’s age was a factor in the decision to recommend Malik,” wrote Administrative Law Judge Christine Marbach Kellett.

Moreover, a 2009 U.S. Supreme Court Decision (Gross vs. FBL Financial Services) makes it more difficult for a plaintiff to win an age discrimination case. In the past, courts required the worker to prove that age was one factor in their dismissal or demotion. But the Supreme Court’s 5-4 vote reversed the long-standing rule, and requires the worker to prove that their age was the main reason for their dismissal or demotion.

And yet, even as ago discrimination cases became harder to prove with that federal decision, the number of cases is still rising.

“Most people are aware of the laws that prohibit age discrimination,” said Modica, the Rochester-based employment law attorney. “People who do discriminate are going to be subtle about it. There’s not going to be any smoking gun. They may not even keep any employee (performance) reviews. So yes, it can be very tough to prove.”

He said successful age discrimination lawsuits usually include comparative information with younger workers who fared better with the company or institution, “but that information isn’t always available to the person who is suing.”

Attorneys say it’s tough to avoid including clues to your age on a resume or application. It may be OK to leave out the year you graduated from college, but at the same time an application may ask for specific dates at a previous job and the applicant would otherwise be encouraged to note having several years of experience in their field.

“But when you walk in you can’t hide that you’re not 25 years old,” said Berg, the Syracuse attorney. “I think employers should realize that there are a lot of plusses to hiring older workers. They are more reliable and they’re experience can’t be duplicated. And they probably have fewer excuses for not showing up.”

“A lot of companies are still getting away with age discrimination, but I think we’re getting better — the impressions about older workers are improving. Still, we’re living in a society that is youth driven. There is still a premium on looking younger and being younger.”