The Grey Ceiling
Many companies have an informal policy of dismissing employees when they reach a certain age because they would prefer to train younger workers. Younger and less senior employees cost less, are thought to have fewer health-related issues and to be more trainable. In most cases, these policies are against the spirit of employment law. Job seekers are reporting age discrimination in hiring as early as the mid-thirties. In some industries, people are considered “washed-up” by the time they reach their forties. People have given the practice a nickname, “the grey ceiling.” The length of time in unemployment correlates with age (largely because of people older than 45).
The Rip Van Winkle Effect
Age discrimination also happens because of changes in the job search culture. People who have been working in a job for 20 years may not be aware that the job duration expectation has changed. When many people started their employment, people could be expected to stay in a job for decades. Now, employment is expected to last 5 years on average. Unemployed people who did not grow up in this short-term job culture may not understand this.
In addition, the rituals around writing resumes and interviewing have changed considerably in the last ten years or so. At one time, a resume was supposed to contain a full experience summary and could cover 4 or 5 pages or more. Now, long resumes are considered suspect. Everyone is advised to keep your resume to one or (at most) two pages. Job seekers are urged to leave off the resume any job experience more than a few years old.
The Aging Working Population
In a society whose population is aging and where people retain their health longer, this endemic practice of age discrimination is extremely wasteful of human talent. Growth statistics indicate that over the 16 years between 2008 and 2024 the population of people over 55 who are still working will have increased by 52%. Still healthy at 65, more people are postponing retirement to continue working. Many feel that not working is a factor in age-related dysfunction. On the other hand, studies have shown no relationship between age and work performance.
Age Discrimination and the Law
Federal employment law (The Age Discrimination in Employment Act) prohibits employers from discriminating against employees who are 40 years old or older. Many states have their own similar anti-discrimination statutes. Anyone who has a substantiated belief that he or she is suffering age discrimination of the grey ceiling variety or who have been refused employment or promotion because of their age can sue the employer for compensation or damages. You will almost certainly need to retain an experienced employment lawyer to help you.
The procedure involves several steps.
- You must file an administrative complaint with the federal office of the Equal Employment Opportunity Commission (EEOC). This is the office which enforces the federal anti-discrimination laws (your state may have its own similar office to enforce its own similar statutes). The EEOC will investigate your complaint by contacting the employer, interviewing witnesses and reviewing other evidence.
- You can file your formal lawsuit within 60 days of filing the complaint with the EEOC. Meanwhile, once the investigation is complete, and if it suggests valid grounds, they may issue a “right-to-sue” notice. This will give you 90 days to file your formal lawsuit.
- The process for civil lawsuits will kick in. You become a plaintiff. Your lawyer and the lawyer for the defendant will conduct a Discovery to gather and exchange the information and grounds for the suit.
- Before you go to trial, you will have the opportunity to seek mediation from a third party which can bring about a negotiated settlement.
- If mediation fails or is rejected your case will go to trial in a civil court.
Aiman-Smith & Marcy is a boutique law firm that focuses on employment law, consumer fraud, and class action attorneys. Please contact us to learn more.
