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What's Age Got to Do with It?

Chris Carter, formerly president of a Cincinnati-area auto parts maker, has suspected for some time that his age -- he's 59 -- could make it more difficult to land his next job as a senior executive. His fears were confirmed recently when Carter (not his real name) contacted a recruiter about a top post at another parts maker. "The recruiter told me, 'My client is looking for someone younger,'" says Carter, who has worked as a consultant since he voluntarily left his previous employer two years ago. "At least they were honest."

Honest? Probably. Legal? Probably not, since even saying such a thing smacks of age discrimination, says Linda Bartlett, a labor and employment lawyer at Bartlett & Bartlett in New York, which represents both management and plaintiffs. The Age Discrimination in Employment Act (ADEA) bars employers from using age as a basis for hiring and firing and other employment considerations, such as promotions and compensation. "It's unusual that a recruiter would be that blatant about it," says Bartlett, who also chairs the New York State Bar Assn.'s labor and employment law section.

Even so, Carter says he has no plans to file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal enforcement arm for cases of employment discrimination against workers ages 40 and above. "I would rather get a job. I sue them and I become a pariah."

BOOMING COMPLAINTS. More and more older Americans appear willing to take such a chance. In 2000, 16,008 individuals filed age-discrimination charges with the EEOC, up 13% from the 14,141 in 1999. The increase was probably due in part to the rash of layoffs in the past year or so that has left affected older workers feeling unfairly targeted. It's the highest number since the recession of the early 1990s, when the job cuts were deeper still.

Thanks to demographics, experts expect the number of complaints to keep rising. The oldest of the country's 77 million baby boomers, representing about a quarter of all Americans, are just hitting 55. The median age of the labor force is increasing -- to 38.7 years in 1998 from 35.9 in 1988 -- and is expected to reach 40.7 in 2008, according to the Bureau of Labor Statistics.

With more older workers, there will by extension be more age-discrimination complaints. "The claims are in part being driven by dismissals," says Michigan State University economics professor David Neumark, who is currently a visiting fellow at the Public Policy Institute of California. Beyond that, "The bulge [of baby boomers] in the population as it gets older is going to drive up claims for sure."

DISCRIMINATION DOESN'T PAY. The cost will be significant for employers and employees alike. For starters, the EEOC says companies last year paid out about $56 million to victims of age discrimination, a number that's likely to rise. In addition, demographers are predicting a shortage of workers as the U.S. economy grows and boomers are supplanted by the baby bust generation, which makes alienating older workers a dumb idea. "Younger workers are going to be in short supply," says Sheldon Steinhauser, president of Denver-based Sheldon Steinhauser & Associates, a consulting firm that specializes in age issues. "Sooner or later, these companies are going to have to recognize that they have a quality group out there."

For older workers, the impact of age discrimination goes beyond just economics, experts argue. In addition to the loss of salary and benefits when a job is denied or terminated, older employees often must deal with indignities that take an emotional toll -- even if they keep their jobs. They may be suddenly excluded from strategic planning sessions, discouraged from seeking ongoing training, or see their job duties divvied up among younger workers, says Steinhauser, also an associate professor of sociology at Metropolitan State College of Denver.

What's more, while most workplaces have zero tolerance for racist or sexist comments, they aren't as vigilant about ageist remarks. "It is still O.K. to call someone 'an old fart' and make references about their age," says Laurie McCann, senior attorney at the AARP (formerly the American Association of Retired Persons).

NUMBING NUMBERS. A majority of the approximately 200 older executives polled in May by ExecuNet, a national executive career management network, said they have had some experience with age discrimination. The survey found that 77% of these older workers believe age discrimination is a serious problem in the labor market, while 58% say they have encountered discrimination during a job search.

It's numbing, older employees say, to discover that a lifetime of work experience can be voided out merely because they have little hair -- or none. "I think somebody my age can bring a lot of enthusiasm to a job," says Carter. "Because of my experience, I am willing to push the envelope a bit. I plan to work till I'm 70. That's 11 more years. What's age got to do with it?"

Companies try to weed out older employees for a variety of reasons. Executives who have spent years working their way up the corporate org chart may be drawing fatter salaries than younger execs, leading bean-counters to flag their names when cost-cutting time rolls around. And as workers get older they are perceived as being less committed to their jobs than more junior employees, who because they may be single or anxious to get promoted are often more willing to put in 80-hour weeks.

YOUTH CULTURE. Financial services is one industry that appears to have trouble finding a place for older workers. "There is an element of youth culture on Wall Street," says Joan Zimmerman, executive vice-president at G.Z. Stephens, an executive-recruiting firm for the financial and investment community. "This is a business in which the managing directors are in the 32- to 45-year-old category."

Matt Budd, chairman of The Financial Executives Networking Group, an international networking group of senior-level financial executives, tells his membership that the odds of finding a job at a large corporation are very small after they turn 40. "If you were to parachute in at the top level, you would close off a career track for a younger employee who's already at the firm," Budd says. "Companies don't want to hire you. Is that smart business or age discrimination? I don't know."

CASE IN POINT. One discrimination-in-hiring case that recently made headlines involves Spencer Stuart, the global executive search firm that often recruits for the nation's top companies -- including Yahoo!, which used the company to find its new chief executive, Terry Semel. In a Mar. 15 "determination" letter, Spencer H. Lewis Jr., director of the EEOC's New York district, said an investigation found "reasonable cause to believe" that the company had violated the ADEA by supplying the ages of candidates to prospective employers "for a discriminatory purpose."

The letter said Spencer Stuart provided "... the ages of candidates, either verbally or in writing, to select clients." Helpful to the EEOC's case was a January, 1995, memorandum in which Richard Kurkowski, Spencer Stuart's chief financial officer, encouraged employees not to keep written records of candidates' ages. "The best approach [for our clients] is to provide this information verbally so that their permanent records do not contain this information," states the memo, which was excerpted in the EEOC's complaint. In a statement, the company said the EEOC's complaint is without merit: "Spencer Stuart has never discriminated against any individual for reasons of age -- or for any other reasons."

McCann of the AARP, which brought the complaint in October, 1998, says the parties are now in a "conciliation" phase during which they will try to reach a settlement. "We are sure that Spencer Stuart is not the only recruiter that is doing this kind of thing," she says. "It's worrisome because search firms have such an important role as gatekeepers to employers."

WHERE'S THE PROOF? Lawyers argue that discrimination in hiring is likely the most common type of age bias -- and perhaps the hardest to prove. Plaintiffs essentially must show that they would have gotten the job if not for their age. Harder still can be determining exactly what harm was done by a rejection if the applicant has never actually worked for the employer. "When it comes to hiring executives, the criteria may be extremely subjective," says Felice Ekelman, a New York-based partner with Jackson Lewis Schnitzler & Krupman, a labor-law firm that represents management. "Because candidates' experience and educational backgrounds vary, it can be very difficult to prove discrimination in a hiring case."

An easier case to win involves companies that lay off older employees and replace them with younger ones who are less qualified. Companies keep records of employee performance, making it more possible to determine if age was a factor in a termination decision. It's also easier to calculate what an unfair dismissal might cost an employee in pay and lost benefits.

In May, for example, a jury awarded four former University of Wisconsin Press employees -- all in their 40s and 50s -- a total of $430,427 after they were fired and replaced with younger workers, according to an EEOC statement. John Dowling, senior university legal counsel, says there was no violation of the ADEA and that the school is in the process of looking at its options with its attorney at the Wisconsin Justice Dept.

MAKING WAVES. Clearly, older workers have recourse when they are layoff targets. When companies are jettisoning workers en masse, they can't dismiss disproportionate numbers of older workers -- or women or minorities, for that matter -- without risking getting sued for discrimination. Yet attorneys say if reductions in force are national in scope, or global, it may be hard for an older employee to know that more senior workers were being singled out.

"Companies need to apply objective criteria when they figure out who to lay off," says Paula Brantner, a senior staff attorney at the National Employment Lawyers Assn., a specialty bar association for lawyers who represents workers in employment- and civil-rights cases. "A lot of managers may make recommendations as to whom to lay off, but whoever is minding the store may not be paying attention to the demographics."

Under the Older Workers Benefit Protection Act, a company can ask employees to waive their rights to sue in return for severance. But employees usually have 45 days to consider the option and seven more to change their minds if they sign the pact. Companies offering the severance deal are also required to furnish the employees slated to be let go with a list of the job titles and ages of those affected by the job cuts and those who aren't, attorneys say.

Many employers may now be paying closer attention to these issues than at any time in the past decade. As layoffs increase, Ekelman says, more companies are having to dial up employment lawyers for advice on how to do things right -- or at least in a way that lessens their legal exposure. Moreover, a landmark class action filed last year by Hollywood writers, charging that the entertainment industry "graylists" them after they reach middle age, raised age discrimination's profile, and not just in youth-obsessed Tinseltown.

And Baby boomers who are victims of age discrimination may be more likely to litigate than the generations before them. "They are less afraid as a group of making waves," says Steinhauser. "As a group, they are more sophisticated, better educated, and more comfortable with the legal process."

LIP SERVICE. Although companies say they are concerned about how their older workers are treated, they don't appear to be putting money behind their words. A 1998 survey by the National Council on the Aging of 240 U.S. employers -- ranging from small companies to some with more than 90,000 workers -- found that 97% of employers believe older workers are thorough and reliable in completing their work. But only 11% said they actually had a strategic plan for using older workers in the future.

Yet companies can't afford to be simply reactive, hiring lawyers only after being slapped with a lawsuit. With the labor pool shrinking, employers are going to have to rely more on older workers. That's why people at the top of the operation have to be committed to attracting and retaining this segment of the workforce, argues Steinhauser.

Although corporations discuss age issues when they put employees through diversity training, the subject often gets short shrift, he says. "I don't see lawyers, for example, encouraging employees to do preventative education for age discrimination in the same way there might be preventative education for other diversity issues," Steinhauser says. He encourages employers to meet with older employees to see how they feel about their jobs and work environment. With the feedback from these meetings, companies can put together plans to improve the climate for older workers.

AGING GRACEFULLY. One company that seems to have gotten the message is CVS, the large drugstore chain. Working with the National Council on the Aging and other organizations, CVS has boosted the percentage of people ages 55 and over in its 100,000-strong workforce to 15%, from less than 7% in 1992. Age diversity is seen not just among its clerks, but in the retailer's more skilled staff such as pharmacists and store managers.

"They reflect all of our core values: respect for individuals, integrity, teamwork," says Steve Wing, director of government programs at CVS. "There are fewer younger people out there. This is where potential staffing solutions are."

Turns out, older workers are costing the company less in benefits than younger workers. That's because they tend to have fewer dependents and are less likely to take off work to go to the doctor, he says. "That broke that misperception," says Wing.

"YOUNGER" RÉSUMÉS. Workers looking for a job just about anywhere else often must go to great lengths to disguise their age just to get a foot in the door. As job applicants see it, a résumé that looks "younger" may help them at least get an interview. Jobs he held early in his career and the dates of his university degrees have been lopped off of Carter's résumé. (Employers can request the dates from colleges for verification purposes.)

"My physical appearance doesn't hurt me at all," Carter says. "Due to my good luck or my choice of parents, I can pass for 45." Those who aren't so lucky may find themselves coloring their hair or hiring a personal shopper to liven up a wardrobe, says Louise Kursmark, president of Best Impression Career Services, a Cincinnati resume-writing and career-services business. "But people shouldn't go out and get plastic surgery for a job search," she says. "That is a little drastic."

More important than looks is attitude, Kursmark says. Candidates who project energy, a progressive attitude, and a high comfort level with technology may look younger than their years. "I don't think many companies are not hiring people because they are too old," Kursmark says. "Maybe they look old, they don't have a progressive attitude, or they lack good computer skills. It is more a matter of how you present yourself than your actual calendar age."

That may be the case at some enlightened employers. But until companies start to treat ageism as the same type of scourge as racism or sexism, calendar age will still remain a troubling barrier for some workers. By Eric Wahlgren in New York

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