Tapping out in the over 50 workplace

By Jane Bokun

If you think age is just a number, try being over 50 in the workplace.

In today’s 20-something workforce, out with the old seems to be a watchword — and even many 40-somethings are starting to look over their shoulders and feel the hot breath of youth bearing down on their careers.

In today’s 20-something workforce, out with the old seems to be a watchword —

Everyone in the workforce

Age discrimination is definitely a consideration in the workplace,” said Melissa Cole, an assistant professor of law at Saint Louis University Law School. Cole said as layoffs occur in today’s shaky economy, age discrimination lawsuits do sometimes follow, but not as often as sex or race discrimination cases. She said companies that have large layoffs many times include all age groups so that age discrimination does not affect the larger workforce.

And, she said, when companies layoff, they oftentimes have employees sign an explicit waiver precluding any discrimination lawsuits in order to receive an incentive on a compensation package. Older workers most often take the packages rather than opt for a lengthy lawsuit.

However, baby boomers who are turning 55 this year and are highly paid middle managers might disagree. There are now about 16 million Americans ages 55 and older who are working or seeking work, according to figures compiled by the AARP-Roper Starch survey.

Economic necessity will keep aging boomers working longer largely because of longer life expectancy, more limited private pension benefits and anxiety over potential changes in Social Security. These long-term workers sometimes are the first to be discarded in favor of younger workers with less pay requirements, and they do tend to strike back, Cole said.

Scott Stewart, a labor and employment attorney with Burroughs, Hepler, Broom, MacDonald, Hebrank & True in St. Louis and Edwardsville, handles cases for both sides.

“Age discrimination lawsuits coupled with gender and race discrimination are slightly on the rise in the area,” Stewart said.

There are a lot of factors involved in winning an age discrimination suit, Stewart said, including a lengthy evaluation process to determine whether an employer had unreasonable expectations, such as unnecessarily complicated job directives.

“They can say things like you are not as accomplished in computers,” he said. “But you would have to prove that was only a pretense.”

When making the decision to sue your employer, Stewart said, the first obstacle is making your case to an attorney who will then take it on a contingency basis.

“One of the drawbacks to age discrimination suits is that punitive damages are not available,” he said.

He recommends that if 40-plus workers feel the need for legal back-up, they first file charges with either the Missouri or Illinois Equal Employment Opportunity Commission (EEOC).

“They have a human rights commission that can make an attempt to mediate the situation,” Stewart said. Barring that, the claimant also must obtain a right-to-sue letter within 90 days of filing.

There is some good news for plaintiffs. Although only about 20 percent of all complaints filed with the federal EEOC are for age discrimination, people claiming age discrimination were awarded an average of $219,000 compared to $147,799 for race discrimination, $106,728 for sex discrimination and $100,345 for disability discrimination, according to Jury Verdict Research.

“You tend to get lots of age discrimination claims in a business climate coming out of this type of setting,” said Dan O’Toole, an attorney with Armstrong Teasdale. For example, he said, in St. Louis companies like Boeing and others laid off workers and got 40 or 50 age-discrimination lawsuits.

Some St. Louis corporate leaders are realizing they can act to reduce or eliminate age discrimination through effective management and educational programs, O’Toole said.