Older and unemployed Americans often retire early because they’re facing a harsh reality: they’ve lost jobs and can’t find employers willing to hire applicants in their 50’s and 60’s. If you’re in that age range and unemployed, there is a low chance that you’ll find a new job that pays as well, or better, than the one you left. It’s illegal to discriminate against older Americans, but that doesn’t stop it from happening every day.

State and federal laws prohibit adverse employment actions against older workers. The federal Age Discrimination in Employment Act (ADEA) is supposed to protect workers older than forty, but courts have interpreted it so narrowly that it’s become difficult to use. Employers’ attorneys have successfully argued the ADEA language differs from the Civil Rights Act, so it provides not as many protections.

Think You’ll Have a Steady Job Before Your “Golden Years”? Don’t Count on It

ProPublica and the Urban Institute, a think tank, looked at information from the Health and Retirement Study. Since 1992, it’s followed about 20,000 people from when they turned 50 through the rest of their lives. From the time older workers entered the study until they stopped working:

• 56% were laid off at least once or had to leave jobs under sketchy circumstances
• 90% earned less in new jobs after losing prior ones
• Years after losing a job, household incomes of more than half of those experiencing work disruptions stayed substantially below those who continued to work

ProPublica estimates that as many as 22 million older Americans have or will suffer a layoff, forced retirement, or another kind of involuntary job separation. As few as two million have recovered financially or will. If you add careers ended due to personal reasons like poor health or family issues, the number of older Americans pushed out of regular work late in life approaches 27 million.

Federal Legal Protections Shrink Over Time

ADEA became law in 1967, three years after the Civil Rights Act, and was treated like an add-on to that law. Courts and lawyers acted as if the two worked together, applying the same protections based on race, color, and gender to workers 40 and older. Those  were the good old days.

In 1993, the US Supreme Court started swinging the wrecking ball, according to ProPublica. A 62-year-old man fired just weeks before he could collect a pension was out of luck. It reasoned qualifying for his company’s pension was based on length of service, not age, so the plaintiff couldn’t use ADEA claims in his lawsuit.

The court later decided ADEA would apply in only the clearest cases of discrimination. It created limits on the rights of older workers that don’t apply in cases of gender, color, ethnicity, or race discrimination. In 2009, it stated a 54-year-old financial manager who claimed his demotion was based on his age had to prove the nearly unprovable — that it was the only factor in his employer’s decision. How could he or anyone else ever make that proof?  If the same person said his race was just one reason he was demoted, he could still maintain his lawsuit.

Severance Packages: Want Some Money? Health Benefits? Give Up Your Rights!

A weakened ADEA isn’t older workers’ only concern. A slower economy means fewer job opportunities. If health insurance was a benefit before, fewer employers offer it now. Work may be found if you’re an independent contractor, not an employee, so you won’t benefit from a number of protective laws, you don’t get employment benefits, including Workers’ Comp and Unemployment Benefits, and you’ll pay more taxes.

Add to this toxic stew more legal issues. The employee may be offered severance benefits in exchange for an agreement not to sue the employer. The agreement may prevent the worker from taking a future job that is competitive with the one being left and compel enforcement claims to arbitration while prohibiting participation in a class action lawsuit.

Federal Agency Shows Rights of Older Workers Still Exist

All is not lost. The ADEA, though weakened, is still on the books. The federal Equal Employment Opportunity Commission (EEOC), the agency enforcing federal employment anti-discrimination laws, is taking on IBM due to its alleged focus on firing older employees so they could be replaced by younger ones, reports ProPublica.

ProPublica states that IBM, over several years,

• Targeted older people for layoffs and firings, even those rated as high performers. In some cases, money saved as a result was spent on younger replacements
• Forced retirements, resignations, and firings to avoid “layoffs,” which, under the law, would’ve resulted in public disclosures
• Those targeted for job elimination were told to apply for open positions, while managers were instructed not to hire them
• Many of those forced to leave had to train their younger replacements
• Some laid-off older employees were told their skills were out of date. But they were brought back as contract workers, doing the same work for less pay and fewer benefits

In September, the EEOC found that IBM illegally directed managers to replace older workers with early career hires, according to Forbes. In a letter sent to the parties, the EEOC stated an investigation found that between 2013 and 2018, more than 85 percent of eliminated positions impacted older employees.

An age discrimination class action is also pending against IBM. It’s estimated since 2012, the company laid off; fired; forced to resign; or sent packing about 20,000 older employees.

Your Next Step

If your employer has discriminated against you due to your age, you have options. These can be difficult claims to prove, but that is dependent on the facts, witnesses, and proofs, which are unique to each case. If you believe you’re the victim of workplace discrimination or retaliation, or fear you will lose your job, contact us right away. If you’ve been told your position will be eliminated and you’re given a release or severance agreement, do not sign it until you talk to us.

If you have any questions, concerns, or need legal representation, schedule an reduced fee initial consultation at our Central Jersey law offices in Kingston.  Call 609-683-7400, or contact us online. Call today. You will be glad you did.