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Age Discrimination on the Rise

If any more confirmation was needed that age discrimination is virulent, the New York Times has published a couple of articles this summer showing the difficulties older workers face. In an article from July 22, 2013, the Times reported that according to the U.S. Bureau of Labor Statistics, it typically takes an older person who is laid off two to six months longer to find another job than it takes a younger worker — and the new job is likely to pay substantially less. One study found that a younger job applicant was 40% more likely to receive an interview than a person 50 or over. Younger job applicants needed to send out between 16 and 19 resumes in order to get an interview, while older workers needed 23-27 resumes.
In another article, from August 26, 2013, the Times reported that older workers laid off in the Great Recession have had an especially hard time finding work. Less than half, or 47%, of people between the ages of 55 and 64 have gotten new jobs, and for those over 65, the re-employment rate is just 24%. This compares to a re-employment rate of 62% for 20- to 54- year olds. And the jobs that older people find typically pay less than their former job: 18% less for older workers, compared to a 6.7% pay cut for younger workers.
And what are the courts doing about age bias? Well, the U.S. Supreme Court is, if anything, going backwards in assuring the enforcement of laws barring age discrimination. In 2009, the Supreme Court, in the case, Gross v. FBL Financial Services, Inc., made proving age discrimination harder than proving other kinds of discrimination (like sex or race), ruling that older workers could no longer prove discrimination by showing that age bias was a “motivating factor” in a hiring or firing decision. Now, older workers have to show that age bias was the “but for” cause of the adverse employment action. Back in 2010, I wrote an article, see “Accessing the Impact of ‘Gross’ on Employment Discrimination Cases,” strategizing how to minimize the impact of the Supreme Court’s decision. Yet, from the perspective of four years after Gross, it appears that if nothing else, the decision has emboldened employers to think they can lay off older workers without legal consequences.
Fortunately, here in New York City, we have the New York City Human Rights Law which provides greater protection for victims of discrimination than do the federal anti-discrimination laws. Under the NYCHRL, which requires that bias play “no role” in employment decisions, an employee can still prove discrimination by showing that age bias was a “motivating factor” in the decision.
Beranbaum Menken LLP is active in representing older workers fighting age discrimination. Currently, the firm is litigating a nation-wide collective action age discrimination lawsuit against a logistics and transportation company, Mainfreight, Inc. We also are representing individuals in age discrimination lawsuits against such major institutions as JPMorgan Chase.