The following post was updated on Jan 18th, 2023.
Unfortunately, layoffs becoming common in this economic climate, and have been used as an excuse to discriminate against employees that the employer wants to “get rid of” for other reasons. Often, these employees are older workers, who face significant bias in the workplace. These biases against older workers hit women and minorities hardest.
DOES AGE DISCRIMINATION EXIST?
A lot of data has been collected on this question, and the answer is clear: Age discrimination exists.
For example, Deloitte asked 10,000 companies whether age was a “competitive advantage or disadvantage in [their] organization.” Over two-thirds of respondents said age was a competitive disadvantage. An AARP survey conducted in 2022 found that two out of three women over 50 reported experiencing age-related discrimination.
In 2018, ProPublica and the Urban Institute conducted a huge, 14-year-long study that followed a sample of 20,000 people from the time they turned 50. About 56% of the workers in the study were laid off at least once or left jobs under “such financially damaging conditions that it’s likely they were pushed out rather than choosing to go voluntarily.” And 90% of these workers never again made as much money as they did before they were terminated. Only one in 10 recovered economically from losing their long-term jobs.
It’s clear that the economic consequences of age discrimination can be devastating. That’s why some of the biggest employment verdicts and settlements are age discrimination cases—for example, an $8.7 million verdict against Rite-Aid, a $26 million verdict against Staples, a $15.4 million verdict against Jack in the Box, and an $18.2 million verdict against Dr. Pepper.
AGE DISCRIMINATION HITS WOMEN AND MINORITIES HARDEST
Age discrimination hits hardest along existing socioeconomic fault lines. For example, an AARP study found that women were more likely than men to have experienced age discrimination.
Further, according to the Advocacy Brief on Older Women published in 2021 by the AARP and several UN organizations, only 26.3% of working-age women are covered by a pension plan, compared to 38.7% of men.
COVID-19 Worsened The Playing Field For Women, Especially Women Of Color
The COVID-19 pandemic only worsened these adverse outcomes for older women, especially women of color, who are already at a disadvantage.
According to a study released by the AARP in 2021, 40% of women between the ages of 40 and 65 experienced “at least one job interruption.” Unfortunately, over 70% of women respondents were out of work for six months or more. The study revealed that 3 in 10 of the women participants cared for a child or grandchild who was engaging in remote schooling because of the pandemic. The AARP study further reveals that 41% of women experienced a “job-based income” loss, and 14% completely lost their jobs. Twenty percent of African-American women and 23% of Hispanic women lost their jobs, compared to 14% of Asian women and 13% of White women.
Women Continue To Experience Negative Stereotypes As They Age
Many women find themselves finally freed from negative stereotypes based on their status as mothers and caregivers—only to be hit with new stereotypes about older women. Women who stepped back or left the workforce to support their children are unable to reenter it. A 2017 study by leading economists at UC Irvine and Tulane University found “robust evidence of age discrimination in hiring against older women,” observing that many hiring managers cast aside older women’s resumes—even though they considered similar resumes from men. In 2022, Joanne McLaughlin and David Neumark study laws and policies that are in place to protect women against discrimination as they age or become disabled. They point out that many of these laws fail to protect aging women adequately and do not recognize the intersectionality of the discrimination experienced by this group.
Age discrimination against older women is particularly harmful because they are more likely to live longer, more likely to be widowed, and more likely to have increased healthcare needs than men. Unless they are hired and retained, they are forced to rely on a patchwork and inadequate social safety net—even though they are fully capable of working.
Few studies exist that expressly consider the interlocking effect of sexism, ageism, and ableism. These factors often overlap to drive older women out of the workforce in a “second exodus”—one that follows the first exodus caused by having children, and one that has equally harmful effects on women and their families. Sometimes, they are caregivers for elderly relatives or disabled spouses; other times, they are disabled themselves. The lack of paid family leave in most states and employers’ prejudices against family care obligations often exacerbates the effects of age discrimination.
EXAMPLES OF AGE DISCRIMINATION AGAINST OLDER WOMEN
Anyone can tell you that anecdotes aren’t data. But as leading employment law attorneys, we talk to about a thousand employees a year and hear hundreds of detailed stories to select our cases. These anecdotes paint an extremely damning portrait of corporate America that discards older women, particularly when they are disabled or challenge younger managers in any way. A recurring theme is a bias against working for or with a “mother figure,” and younger workers’ inability to deal with the fact that older workers are often more experienced and knowledgeable than they are.
Examples include:
- A 50-year-old professional was fired after confronting her boss about his illegal and unethical conduct. His opinion of her? She was acting like his “mother,” “just like his mom” and must be “having hot flashes.”
- One worker, a 55-year-old Human Resources professional for many decades, confronted a younger manager about harassing comments he made to a transgender employee. The HR professional was fired for “not handling the situation properly.”
- A 55-year-old professional became disabled and widowed and needed minor accommodations. She was forced to hire a lawyer to assert her right to these minor accommodations and was then “laid off.”
- A 50-year-old manager previously took medical leave for her own lifelong medical conditions, which were exacerbated as she approached 50. A younger man was promoted into her role, she was forced to train him, then was fired.
- One woman approaching retirement age had caregiving obligations for her very old mother. She was first wrongfully denied FMLA and CFRA leave then fired during the COVID crisis, even though most members of her department, including many with significantly less seniority and worse performance, were retained.
We have seen this pattern with numerous clients. Anecdotes aren’t evidence, but they sure tell a consistent story.
TAKE A STEP TOWARD STANDING UP FOR YOURSELF BY TALKING TO AN EXPERIENCED EMPLOYMENT ATTORNEY
Because the stakes are high in these cases, they are often highly contentious battles with skilled defense firms. We know their tricks and our age discrimination attorneys have the experience to get you the best possible result. Our founding partner, Julian Burns King, earned the distinction of Rising Star from 2018 to 2022 and worked as an editor for Harvard’s Journal of Law and Gender. Many of our other attorneys also focus on the rights of women in the workplace.
Stand up for the dignity of older workers. If you have experienced discrimination at your job, do not hesitate to contact us today through our website or give us a call at (213) 238-5818 to schedule a free consultation.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.