With the economy still trying to crawl out of the recession and unemployment still hovering close to 10 percent, it is becoming tougher and tougher to prove claims of discrimination in the workplace, whether sexual, age, race or national origin. Yet, between 2005 and 2009, the most recent statistics available, formal charges of bias filed with the EEOC (Equal Employment Opportunity Commission) surged 25%. And among the highest growing numbers is age discrimination.
The economic upheaval has been especially tough on older workers, and filings of age discrimination have risen accordingly. As the recession deepened employers slashed costs, and those who were given pink slips tended to be the seasoned workers with the highest salies. But with the vast scope of layoffs seen through the country, and the higher legal standards now in place, making those allegations of bias have become harder to sustain.
Most employers are savvy now about layoffs and make sure that enough workers of diverse age are thrown into the mix when terminations come. Throw in companies that are on a rampant cost-cutting kick along, and that makes it even more difficult to identify age discrimination. However, you'll get little argument from either side that older workers earn the highest salies, and when companies decide to cut back they're the first to go. They do this with a sly wink, claiming cost-saving measures, but knowing full well how hard it will be to prove. This is even truer now with the Supreme Court having raised the bar in 2009 in defying the type of legal proof needed to win an age discrimination lawsuit; a decision that has only reinforced the belief that the Supreme Court is perpetuating age discrimination victims as second class citizens. Now, it's not enough for an older worker to file a claim alleging age was one of the factors driving his discrimination suit. The Court has interpreted that now "age has to be the sole cause" of his termination. This, of course, is inherently impossible to prove and has only given more leeway to companies to proceed with the retirement of older employees, knowing that the burden of proof is often insurmountable for a laid off worker to prove otherwise.
While discrimination laws have been on the books for years, not since the dot.com days has age discrimination so so much. A generation ago people like my father took pride in working for one company for 30 or 40 years. Companies valued loyalty then, and succeeded to retain senior workers for their storehouse of knowledge and skills that they acquired over the years. Today, in our new technology driven world, it's become a free agency market with "youth" becoming the bought after commodity. A man or woman in their mid-thirties today and just hitting their stride in their career path will have reasonably had three or four previous positions with other companies prior, and very likely well jump ship again 5 or 10 years down the road by the lure of more greener pastures. A study done by two University of California – Berkley professors, and published in their new book, "Chips and Change," documented through the Bureau of Labor and Census data for the semiconductor industry that salies rose sharply for engineers in their 30s, but that increases began to slow in their 40s and started dropping in their 50s and beyond. Like any professional athlete today, the window of opportunity for earning power, achievement, recognition and vitality to the team is a narrow one. Companies today, like team owners, no longer hesitate to start grooming newly signed rookies to step in and take over for veteran workers.
Age discrimination in technology firms is rampant. But technology firms today go beyond Microsoft, Google, Apple, and eBay. Today, they include almost every corporation in the S & P 500. What use to take a labor force of thousands to assemble the latest Buick or Ford coming down the assembly line is now cheaper and more efficiently by robots. The need for manual labor in the US has steadily declined, while the need for more math and engineering skills has increased. Where a tradesman could once make a good living welding Chevy bodies to chassis frames in Detroit, now being replaced by tech grades who can program and operate the robotics stationed up and down the line. Of course with this demand for higher skills sets and education comes higher salaries, and to keep the bottom line profitable, especially in today's struggling economy, a system of turnover has to be in place in order to keep worker's salies in check.
Enter "Forced Ranking," or what has been called by its other less flattering name, "rank and yank." This is a performance-based assessment system in which employees are ranked against each other based on a particular design or scheme devised by the company. According to a recent article by the American Bar Association, Ford, Goodyear, and Capital One have all been recently sued for age discrimination arising from this performance evaluation process. By 2001, 20% of US companies adopted restricted ranking systems into their company structure, including as many as 25% of the Fortune 500. Although forced ranking is not a new technique, it attracted little attention until the recent economic recession focused a spotlight on its use by several employers as a deciding tool in layoffs.
Right now thousands of experienced engineers can not find jobs. Of these, the highest percentage is found among those 40 years and older. It's no longer a well kept secret that tech companies prefer younger, inexperienced engineers who will work for less money, are more eager to learn the new technology being developed, do not have family obligations and will work all night. Walk inside Google today and you'll find a work force which average age is under 30, and has only 2% of its senior tech people over the age of 40. Those who prefer family time to overtime, or choose to spend their Saturdays at their kid's Little League games instead of pounding a keyboard to complete some software program for their Project Manager are likely to be looked down on as not being team players. Most tech companies will deny they're on a youth movement, while others do not hide the fact that they keep a staff of recruiters who regularly prowl colleges and tech schools looking to hire the best graduates.
While more older workers are alleging age discrimination, fears about job security have preverted many more who believe they are being targeted at work because of their age from filing. And retaliation against those who do blow the whistle has seen their numbers grow as well. Nationally, the unemployment rate for workers age 55 and older hit a record 7.2 percent in December, 2009. With opportunities scarce and unemployment high, frustrated job seekers also suspect that discrimination is preventing them from getting re-rented elsewhere. But firing discrimination cases are the most difficult to prove, attorneys say. Without someone making a discriminatory comment during the hiring process, it's tough to substantiate that an applicant was passed over illegally.
A recent string of US Supreme Court rulings have made it easier for victims to prove that co-workers or their boss took negative actions against them when they complained. In fact, juries will often decide that no discrimination took place, but will agree that a blatiff was ostracized by co-workers or demoted after he or she complained about alleged bias. Retaliation is a complicated problem for employers because it's part of human nature, and one that continues to trip up companies.
Still, the percentage of complaints found by the EEOC to have merit continues to be around 20% nationally. Investigators make decisions based on the facts of each case, and those facts determine the outcome. A shrinking staff of investigators over the years, however, have affected the speed in which the EEOC has looked into complaints, but recent stimulus funds have allowed local offices to hire more attorneys, investigators and staff in order to catch up with the backlog of cases that had been growing. Even with the extra help and the agency's more aggressive focus, there are many cases that it probably will not hear about, said one EEOC investigator in December, 2010. Jobs are so scarce now, people are related to accuse. Better to take the harassment and humiliation, and hang on to what you got for as long as you can. When people complain now, they've already shown the door, or their backs are against the wall.
So what can you do, and is there anything to safeguard you should you experience any of the forms of bias discrimination in the workplace? Well, the first is to be forewarned. And by now you should be. The second is to be forearmed.
Having spent some 30 years working in Information Technology, most of it with Fortune 500 companies, and having seen just about every form of discrimination found, not to mention having felt the effects of age discrimination myself, I can say categorically you need to document everything . By all means keep written correspondence, evaluations, and performance reviews somewhere offsite that you can access. But to document a racial slur, a sexual advancement, or act of age discrimination will take something else. In that regard, I strongly recommend a covert audio and video recording device, otherwise known as spy camera recorders . Hey, you can bet your company is watching you, so do not be embarrassed to forearm yourself. Clever looking video spy cameras and tiny digital voice recorders disguised in everyday objects, and seen only in James Bond movies or used by the Intelligence Community, have now become available to the public. A functional ball point pen or a stylishly worn wrist watch can now record video and audio with the clarity of Hi-Definition TV. In fact, mini spy cameras today are no bigger than a computer chip and can be found in almost any item imaginable. Record meetings while taking notes, or capture video while holding your can of Coke. No one will know you have a secret recording device. Place a mini wireless spy camera in your plant or tissue box at work and record every move and sound around your desk.
Remember, in cases of workplace discrimination home court advantage belongs to the company, and they control the ball. Your only defense is to show irrefutable proof that you've been the victim of discrimination bias. It only takes one word, one gesture, an off-color remark, or an inappropriate touch, but you want to make sure you have it recorded so your proof is self-evident. Note, also, that you have 180 calendar days from the day the discrimination took place in which to file a formal complaint with EEOC. This is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filling deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment, and a state agency or authority enforced that law. The deadline is not extended if only a local law prohibits age discrimination.
Do not think it will not happen to you. A record of nearly 100,000 workplace discrimination charges were filed with the EEOC in 2010 – 15 percent of the American workforce. What are the odds of you experiencing the slap of bias discrimination in one form or the other during your working years? Absolute!
How you decide to deal with it is up to you. However, every worker is entitled to equal treatment under the law, and if bias towards your color, gender, or age raises its ugly head to prevent you from doing your job, denying you advancement, or forcing you out of work, your options for recompense or legal redress is limited to what you can positively show is in violation of the law. Think twice about the practicality of personal hidden spy cameras. You just never know? That nifty little spy pen camera you bought might just be what's needed to win your case.