Age-discrimination filings rise as workforce grows older

Attorneys say a desire for new blood and trouble adapting to new technology often result in age-discrimination lawsuits. (Garrett Bergquist/KRCG 13)

When state lawmakers wrapped up their 2017 legislative session, they left the governor a list of changes to Missouri's employment discrimination laws.

Gov. Eric Greitens has yet to act on Senate Bill 43, which tightens the state's rules for proving employment discrimination under state law. In the meantime, the number of age-discrimination complaints under federal law is rising.

According to the Equal Employment Opportunity Commission, federal law prohibits age-based discrimination against employees who are 40 years of age or older. EEOC data show the number of age discrimination cases filed with the agency rose from 15,785 in 1997 to 20,857 last year, an increase of 32 percent. The vast majority of the cases were rejected due to lack of cause or technical issues, but the share of age discrimination cases which were found to have good cause increased as well, from 11.7 percent in 1997 to 14.7 percent in 2016.

Attorneys caution against reading too deeply into those numbers. Jefferson City lawyer Ryan McDaniels said people understand their legal rights better than they used to and will file lawsuits more quickly.

"I'm not necessarily seeing an uptick in age discrimination, but I am seeing more and more people that want to work longer into the workforce," he said.

The U.S. workforce is aging. According to a 2012 report by the Bureau of Labor Statistics, the portion of the workforce aged 55 and older increased from 13 percent to 19 percent between 2000 and 2010. By 2050, nearly a quarter of the workforce will be at least 55. Those older workers might face an uphill battle to find or retain a job. In a study published by the Federal Reserve Bank of San Francisco, scientists created fictitious resumes for young, middle-aged and older applicants. Applications indicating an age of 64-66 got a much lower callback rate than ages of 29 to 31 or 49 to 51. For sales jobs, older women got 36 percent fewer calls back than young women. Older men got about 30 percent fewer calls.

Arturo Hernandez has represented both employers and employees in discrimination cases. In order to bring an age-discrimination lawsuit, Hernandez said employees must first prove that they are over the age of 40 and were discriminated against by discipline, harassment or termination. They then have to prove these actions happened because of their age. At that point, employers must then prove their actions were justified.

Hernandez said in his experience, older workers often have trouble adapting to new technology. They also frequently develop medical problems that prevent them from working at the level they used to.

"If you are unable to do certain functions because you're physically limited by your medical conditions, that may limit your options as far as employment is concerned, " he said, "especially if you never had issues with that condition before."

Hernandez and McDaniels offered differing opinions on how SB 43 might impact age-discrimination cases. Hernandez said the bill clears up a lot of gray areas that employers and employees both abused. He said the bill brings Missouri into line with federal employment-discrimination law. McDaniels said the bill will make discrimination lawsuits harder to prove than they already are.

Both attorneys said if you think you've been discriminated against, you should talk to a lawyer. McDaniels said most attorneys either won't charge you for a consultation or will ask only for a nominal fee. Under federal law, you have 180 days to file a lawsuit from the action in question happened.

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