The Detroit News
Thursday, October 15, 2009
Deb Price / Detroit News Washington Bureau
Washington -- A stubbornly long recession is hitting thousands with layoffs, but many older workers see a different reason behind decisions about who should be let go: age discrimination.
The Michigan Department of Civil Rights reports a 77 percent increase in the number of people who contacted the agency claiming age discrimination over the past three years, from 703 in 2005 to 1,245 in 2008. Of those, all but 1 percent involved claims of discrimination at work.
Older workers also are turning to the federal government for help: The Equal Employment Opportunity Commission recorded a 36 percent rise in the number of age bias complaints filed by Michigan workers from 427 in 2005 to 579 in 2008.
Complaints likely will continue to grow as the state's jobless rate stays stubbornly high: 15.3 percent in September, up 0.1 percentage point from the month before.
Attorney Steven J. Fishman, chairman of the Detroit-based Bodman law firm's workplace law group that represents companies, argues the rise in allegations can be tied to factors other than illegal discrimination by employers.
For example, Fishman points out the U.S. population is getting older and Americans are retiring at later ages, meaning there are a larger number of older workers who can sue. Also, younger workers sometimes have more marketable skills because they're more comfortable using computers.
"The premium in this economy is getting the job done most quickly and efficiently and at the lowest cost," Fishman said. "No age group has (cornered) the market on that."
Sharon E. Davis, president of SeDA Consulting Inc. in Farmington Hills, said she is not surprised to hear of the increase in age discrimination complaints. She said it's partly due to a combination of an aging population and a down economy.
"There's going to be increased competition," she said, adding that she doesn't agree with companies that cut older workers. "With the state economy, when things get tough, companies look for ways to reduce costs. The longer the person stays in an operation, the more they cost."
Difficult to prove
Proving age bias is behind an employer's decision to lay off or hire workers can be difficult.
Carol Harris, 70, of St. Helen suspects employers favor young applicants, based on her experiences looking for a job.
"It's just a gut feeling," said Harris, who hasn't found full-time work despite searching since 2007 when she was laid off as a homeless shelter advocate. "Employers are going to take someone younger. People have a lot of stereotypes about older workers. But I have the desire and the ability. And I don't feel 70. I feel like I'm in my 40s."
To test that theory, researcher Joanna N. Lahey of the Sloan Center on Aging and Work at Boston College sent 4,000 fake resumes to employers in Boston and St. Petersburg, Fla., for entry-level jobs, such as clerks.
The job applicants whose resumes indicated they were younger than 50 years old were 40 percent more likely to be called for an interview than older applicants, she found.
To deal with the increased caseload, the EEOC is hiring nearly 200 people, mainly investigators, attorneys and other front-line field staff. Meanwhile, in Michigan, budget problems have forced the layoffs of eight of the state's 50 civil rights investigators, and the closing of two of the agency's seven offices -- in Kalamazoo and Saginaw.
Fewer investigators can mean delays in resolving whether employers acted illegally against older workers, Michigan Department of Civil Rights spokesman Harold Core said.
And winning can be tough for workers. Only 1 in 5 workplace complaints filed with the EEOC in 2008 resulted in a favorable outcome for the older worker, EEOC spokesman David Grinberg said. Still, EEOC action last year resulted in a record $113 million for thousands of older Americans who accused employers of age discrimination.
Under state and federal law, it is illegal for employers to hire, promote, demote or fire workers based on age.
Some cases unreported
The number of cases could be higher as not all workers contact government agencies for redress. Some turn to lawyers such as Eugenie Eardley of Cannonsburg, near Grand Rapids.
Eardley represents David Leonard of Alma, who alleges he was fired at age 55 from his job as a manufacturing manager at Melling Products Corp.'s plant in Farwell because the company didn't want someone of his age in the position he held.
Leonard's case could go to trial in Clare County as early as next month. In his lawsuit, Leonard alleges the company promoted a younger man over him who made such comments as "this is a young man's game ... If I was your age, I wouldn't be working here."
Diane Bower, the attorney for Melling Products, based in Jackson, declined to comment. But in its court filings in response to Leonard's suit, the company denies Leonard's age bias allegations, contending his slot was eliminated in a reorganization of a plant that has downsized from 109 to 46 workers.
"Melling Products had a legitimate, nondiscriminatory and nonpretextual reasons for its business decisions," the company's lawyers argue in court papers.
Now 60, Leonard has not been able to find a replacement for his nearly $50,000-a-year job, Eardley, his attorney, said.
He received no severance, forcing him to draw on a pension earlier than he would have because he needed money, she said.
"The 'reorganization' was just a pretext for getting rid of my client at a company that wanted younger workers," Eardley said. "Dave Leonard sees himself as a family breadwinner. But he never could get back on his feet financially."
Burden of proof
The rise in age discrimination cases under federal law occurs in the shadow of a U.S. Supreme Court ruling in Gross v. FBL Financial Services that makes it harder for older workers to win their claims by saying workers had to prove age was the decisive factor, rather than a motivating factor, in adverse employment decisions.
In response, members of Congress -- Sen. Tom Harkin, D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee; Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, and Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee -- introduced the Protecting Older Workers from Discrimination Act to return the burden of proof to showing age was a motivating factor.
The surge in complaints is having an impact on businesses.
"We're seeing more and more employers coming to us saying, 'How do I protect my business from baseless age discrimination lawsuits?' They want to prevent a lawsuit in the fallout from a reorganization," says attorney Brian Kreucher of Keller Thoma in Detroit.
Still, Michael Pitt, a Royal Oak attorney who specializes in pressing the claims of older workers, says some Michigan employers are using the bad economy as cover to get rid of older, oftentimes higher paid workers.
"The trend now is to terminate an older person and give him a severance package," Pitt said. "The older worker may feel he really was the victim of age discrimination. But he takes the money and goes away. That's easier for a lot of people than the hassle and gamble of having to prove your case in court."
'No longer fit'
Davis said some companies may have difficulty with older workers because they may not be willing to change with a company's new way of doing things or have the technological skill set to keep pace with their company. Younger workers and those recently out of school tend to be more flexible to change, she said.
"They no longer fit where the organization wants to go," she said. "Oftentimes that may be an area of concern for leaders."
Core says age discrimination stands out among reasons Michigan residents contact the agency.
Age bias contacts were up by 77 percent between 2005 and last year.
All categories -- such as race, gender, marital status and weight that state law bans employers from weighing in decisions -- were up in the same period by 25 percent.
Age discrimination complaints accounted for 26 percent of all complaints the EEOC received last year.
"There's clearly a spike in people feeling they have been subjected to age discrimination," he said.
dprice@detnews.com (202) 662-8736 Detroit News Staff Writer Candice Williams contributed.
