What Do We Talk About When We Talk About Age Discrimination?

Seven local attorneys try to bring light to a murky issue

Published in 2013 Washington Super Lawyers Magazine

After a rough week at work, Evelyn, an office manager, is called into a conference room by her boss, Claire. Evelyn was recently directed to fire half the company, and though she raised concerns both moral (it’s not right) and practical (how will the company function?), she did her job: She fired 18 people. Now it gets more painful. Now Claire fires her.

At first Evelyn is angry; then she grasps the difficulty of her situation.

“I am 59 years old,” she says. “Nobody hires anybody my age.”

The above scene is fictional—it took place on the television show House of Cards—but the fear Evelyn expressed is real and seems to be increasing.

Just how prevalent is age discrimination? We spoke with seven employment lawyers—four plaintiff’s, three defense—to get their points of view. Most agree, at least in their experience, that age discrimination claims have risen in recent years.

“When I started in the 1980s,” says Stan Bastian, former state bar president and an employment defense attorney with Jeffers Danielson Sonn & Aylward in Wenatchee, “the employment cases that I saw … all seemed to be race-discrimination claims. Then, starting in the mid-’90s through the mid-2000s, they seemed to be more gender discrimination and sexual harassment. I don’t see those much anymore. In my experience, it’s changed … into age issues.”

During the last 15 years, age-discrimination charges filed through the Equal Employment Opportunity Commission have risen: from 15,785 in 1997 (19.6 percent of all claims), to 22,857 in 2012 (23 percent of all claims), with a peak of 24,582 in 2008 (25.8 percent), when the global financial meltdown began.

As for why it’s on the rise now? Judith A. Lonnquist, a plaintiff’s employment attorney in Seattle, finds that age discrimination becomes more prevalent “whenever there’s a downturn in the economy.  Older workers tend to be higher paid, and the way you reduce the impact on the bottom line is you get rid of the highest paid.”

John H. Chun, an employment defense attorney with Summit Law Group in Seattle, says, “If there has been a rise in age-discrimination claims, I would speculate that a number of factors might play a role, including the economy, the baby-boomer generation, an increasing reliance on technology and globalization.”

Age discrimination remains difficult to talk about, and even more difficult to prove. For every 10 people who bring age-discrimination claims to plaintiff’s employment attorney Cliff Freed, at Frank Freed Subit & Thomas, he estimates that his firm can help two or three. Stephen Connor, a plaintiff’s attorney with Connor & Sargent in Seattle, suggests more conservative numbers. For every 20 people who contact his office, his firm can help one. For the rest, there’s just not enough evidence.

More, none of the attorneys we spoke with, plaintiff’s or defense, could offer a client or former client for us to interview. Many cases are ambiguous, while clear-cut cases tend to settle out of court, sealed on all sides with nondisclosure agreements.

“I’m always uncomfortable talking about specific cases,” says Warren E. Martin, an employment defense attorney with Gordon Thomas Honeywell in Tacoma. “Many of the clients I’ve represented in these cases would prefer their personnel matters not be in the press.”

Connor did offer up two examples that represent to him the two extremes of his practice. The first, in which he was asked to vet a severance agreement, had a positive outcome for the client. “I said, ‘Out of curiosity, why are you leaving?’ And he said to me, ‘Well, they came up to me and told me, “This isn’t a job for an older guy. … It’s time for you to leave.” So they’re offering me this severance.’” Connor pauses in the story to chuckle. “I’m going to misremember the [severance offer], but it was something like 7,500 bucks. I settled that case on a demand letter, never filed a lawsuit, and got the guy $365,000.”

The second case had a less happy ending. “I had a group of employees,” he says, “and some of them had race-discrimination cases, and the employer settled those before trial.” But the age-discrimination complaint was not settled. Even so, Connor was feeling relatively confident as the trial progressed. “I had jurors smiling at me every day,” he says. “They were in deliberations for days and then they came back and you could tell that a bunch of them were very unhappy.” Apparently, in a kind of 12 Angry Men moment, one juror turned the others against Connor’s client. He lost. But Connor thinks the matter goes deeper than one persuasive juror.

“I think that some courts have found that statements such as ‘getting rid of dead wood’ are not evidence of age discrimination, which I find wrong,” he says. “I think that juries may be less inclined to see somebody who is in a protected age group as having been discriminated against than people who are in other protected classes.”

Lonnquist feels differently. Age-discrimination cases, she says, “are my favorite kind of case to put to a jury. Because, as I tell my clients, not everyone on the jury is African-American, not everyone is a woman, not everyone is disabled; but every single one of them is either old, growing old, or loves somebody who’s old. So there’s a lot more empathy.”

She doesn’t just have one representative case; she has, she says, “a bag full of them.”

“I tried a case not too long ago in Snohomish County involving the Arlington School District on behalf of a 72-year-old assistant superintendent,” she says. “This man was the leading expert on school finance in the state. Whenever anyone had a question, they would call this man. And a new superintendent comes in, walks into the guy’s office and says [something like,] ‘Aren’t you ever going to retire? I don’t want to walk in here one day and find you dead at your desk.’ Well, the jury took quite a bit of umbrage at that. And we got a nice award.”

Yet phrases common in age-discrimination cases—“We need some young blood,” etc.—set off alarm bells when translated into a race or gender context. Doesn’t that mean our society accepts age discrimination more easily?

“We accept ageist behavior and attitudes,” Lonnquist says. “But when you get it in the formality of the courts and the jury is instructed that age discrimination is against Washington law, and they see somebody who has been severely hurt by this—lost their job, lost their career, lost their home … I mean, jokes are one thing, right? But losing your job because you’re 62 years old? Where are they going to find another job at that age?”

The process for plaintiff’s attorneys in age-discrimination cases is pretty straightforward. “If we can establish that our client is performing satisfactorily, and that an adverse action was taken against them, and that they’re in that protected group classification [age 40 and over], then the employer has to come forward with some sort of legitimate nondiscriminatory reason for their action,” says Stephen Teller, a plaintiff’s employment attorney with Teller & Associates in Seattle. “They are always telling themselves a reason. Whether or not that reason stands up to scrutiny is the next part. For the most part, if we can prove that the reason that’s being given is not accurate, or it’s trivial or silly or ridiculous, we can go forward.”

The process is similarly straightforward for the defense. “Giving advice to an employer before a decision [about an employee] is made,” Bastian says, “I try to identify if the employee is a member of a protected class, and if the reason why the employer wants to take this action makes sense and is justified by reasons independent of the protected class status. I also pay attention to make sure they’re following their own internal policies. And if there are reasons being expressed as to why this action needs to be taken, has that employee been given some opportunity and notice to change their behaviors?”

As for why age discrimination can occur?

Like other forms of discrimination, including race and gender, there are certain negative assumptions about the protected group.

“I think the stereotype is that people who are older are not as quick to adapt and not as immersed in the technology as others,” says Freed. He adds, “It’s probably undeniable that there’s a segment of an older population that does have some problems adapting, but I think that’s a relatively smaller segment. I think it would be buying into the stereotype to assume that just because you’re older you’re not familiar with the technology and you’re not capable of adapting. Unfortunately, I think it’s a stereotype that some people still accept.”

Lonnquist counters this stereotype with her own. “First of all,” she says, “older people tend to have a better work ethic. Secondly, they know more simply because they’ve been on the job longer, and by getting rid of them you lose a lot of institutional memory. It’s not only illegal, it’s a bad business decision.”

“We are all creatures of stereotype,” adds Teller. “We have to be. We have to simplify the world. … The problem is when we then take those [generalizations] to places we shouldn’t, and apply them, impacting people’s lives."

Unlike other forms of discrimination, however, there is a financial component to age discrimination. Older workers tend to make more. Their insurance costs are higher. If your business is focused on the bottom line, and you’re not concerned with the institutional memory of the position, then having a younger workforce doesn’t seem like a bad business decision. It seems like a good one.

In fact, firing someone because they earn more isn’t necessarily illegal.

Freed cites a 1993 U.S. Supreme Court case, Hazen Paper v. Biggins, which he calls “confusing” and “a really bad case from an employee’s perspective.” The case, he adds,  “allowed the employer to say that the cost of somebody … is not a basis for an age-discrimination case. For example, an employer can have people who’ve been there 30 years and making more money than the entry-level people, and they may be able to terminate those older people because they’re making more money—as long as the reason they’re terminating them is solely because they’re making more money, even if the amount of money they’re earning may be correlated with age.”

Then there’s the 2009 decision Gross v. FBL Financial Services, Inc., in which the U.S. Supreme Court held that age-discrimination cases require a higher standard of proof than race or gender discrimination.

“Whereas in other, federal kinds of discrimination,” says Freed, “like gender or race, you only have to show that it was a motivating factor. … [in age-discrimination cases] it has to be the ‘but-for’ cause.”

Both rulings are federal decisions, though, and the majority of age-discrimination matters, if they go to trial—which is itself rare—wind up in state court, which is beneficial to Washington state employees. “Washington law against discrimination has been around a long time,” Freed says. “The courts don’t follow Hazen Paper necessarily. At least no Washington court has made it clear that we follow Hazen Paper, although it wouldn’t be surprising if they did, and we definitely don’t follow Gross. In Washington, you just have to show that age was a substantial factor in the termination.”

But that’s difficult enough.

The first federal law to protect workers from age discrimination, the Age Discrimination in Employment Act of 1967, grew out of the 1964 Civil Rights Act, which included a section instructing then-Secretary of Labor W. Willard Wirtz to examine age discrimination in the labor market. His 1965 two-volume report found no evidence of prejudice against older workers. But he did find substantial evidence of employers not hiring qualified workers based upon age.

“The report holds,” The New York Times reported in 1965, “that about half of all job openings that develop in the private economy each year are closed to applicants over 55, and a quarter of them are closed to applicants over 45.”

This may be the biggest reason why age discrimination is so difficult to talk about. The most prevalent examples are assumed to be the result of inaction rather than action: not hiring someone within the protected group rather than firing someone within the protected group.

“When it’s happening on the job, it’s easier to prove,” says Teller. “Usually you’ve got somebody who’s doing a good job, and they get a new supervisor who’s got an attitude. Often, that supervisor will make some kind of comment or slur or joke that gets you into their mental state or their motivation.”

Then there are the situations in which older job-seekers are simply not hired. “Those are tough cases to pursue,” Teller says, “because you don’t have any contacts on the inside. You just get turned down for the job and you never learn that there was some comment by the decision-maker that they need a new, young sales force. You just don’t get a call.”

Certain statistics bear this out. While older workers are less likely to be unemployed than younger workers, they are more likely to suffer long-term unemployment (27 weeks or more). In a February 2010 study, the U.S. Department of Labor found that, among the unemployed, only 28.5 percent of those ages 16 to 24 suffered long-term unemployment compared with 49.1 percent of those 55 and older. By 2011, that figure for older workers reached 55 percent.

This, too, makes some business sense. Institutional memory, one of the best reasons for keeping older employees, is not in play when it comes to hiring. A younger employee, meanwhile, may stay with a company for decades; that’s unlikely for a 59-year-old employee.

“Some employers tend to want to hire someone younger; someone they can train rather than someone who comes with a lot of experience,” says Bastian. “It appears to employers that they can justify that easily—either fool themselves that age discrimination isn’t involved in their decision or hide it sufficiently so they don’t have to pay the consequences.”

That either/or proposition is part of the murkiness of age discrimination. Is it happening on purpose? Or, as the Wirtz report suggested 50 years ago, is it the result of “the ruthless play of wholly impersonal forces”?

Freed, though mostly a plaintiff’s attorney, also works as a mediator, and he sees both sides of the issue. “What I can tell you, in fairness, is that I often see employers who swear up and down every which way that they haven’t discriminated,” he says. “They’re dealing with a lawsuit that’s costing them tens of thousands of dollars when they don’t believe they’ve done anything wrong.

“And they may not have done anything wrong. I mean, who knows?”

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