How Older Women Can Report Age Discrimination at Work or in the Hiring Process
Editor’s Note: Each edition of this Women Entrepreneur series, Behind the Numbers, presents a stat about a disadvantage women face in work and in business, examines the dynamics at play and provides guidance to help women overcome obstacles.
Demographically, the U.S. labor force is changing slowly, but it can be difficult to understand the shifts upon first glance at the data. Yet one stark reversal has happened in the past few decades: While men filed almost twice as many age discrimination charges with the Equal Employment Opportunity Commission (EEOC) as women in 1990, women have been filing more complaints than men annually since 2010.
No wild discrepancy between the number of older men versus older women in the workforce has existed at any point during this time span -- in fact, the groups have approached close to equal numbers. Today, 46.7 percent of today’s workers ages 55 and older are women, up from 42.8 percent in 1990 but slightly down from 47.3 percent in 2010. Men still make up more than half of this group, however, despite the fact that women tend to live longer.
Going forward, the Bureau of Labor Statistics predicts that an increasing proportion of women 55 and older will participate in the workforce, while a declining proportion of men 55 and older will do so, according to Diane Lim, Conference Board principal economist. As Lim writes, women tend to live and remain healthy longer, and they’re becoming educated at faster rates than men to work in “more cerebral, less physical” fields.
But until now, if less than half of workers 55 and older were women in 1990, 2010 and today, why has there been such a reversal when it comes to filing age discrimination charges, more formally known as Age Discrimination in Employment Act (ADEA) complaints?
One possible explanation is age discrimination in the hiring process. A 2015 study by researchers at the University of California at Irvine and Tulane University found that when older women submit resumes to apply for jobs, they’re far less likely to get callbacks than men or younger women.
Age discrimination also goes hand in hand with other forms of discrimination; women and people of color are more likely to observe, experience and report it. But it’s difficult to make intersectional discrimination claims because Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex and national origin, but age discrimination is covered by the ADEA, explains Muslima Lewis, a senior attorney advisor within the EEOC’s Office of Legal Counsel. While it may be impossible to divorce one type of discrimination from the other, those who formally report incidences have to choose.
In an AARP survey of older adults, nearly two-thirds of respondents said they have seen or experienced age discrimination at work, while 92 percent said it is “very or somewhat common.” According to the EEOC, only 3 percent of older workers who have witnessed or experienced age discrimination report having made a complaint either internally or with a government agency.
Regardless of whether a failure to report stems from a fear of retaliation, a belief in the futility of reporting (when the burden of proof is on the plaintiff in a lawsuit), a reluctance to reduce an intersectional claim to one type of discrimination or insufficient knowledge about one’s recourse, most cases of age discrimination go unreported.
Here’s what older women can do if they suspect or know they’ve been discriminated against on the basis of age.
1. Address the person who’s discriminated against you, if you can.
Before you think about filing a complaint, take the first, softer step of having a conversation with a colleague about their discriminatory behavior. For instance, if someone has denied you the opportunity to participate in a new company initiative that requires the use of a complicated technology, and you perceive you’re being excluded because someone assumes you’re too old to understand the tech, you might approach the manager of the project, explaining that you feel underestimated, or that you actually do have experience from your personal life or 30-year career that shouldn’t be discounted.
“I think taking an empowered stance and making a statement like that is very helpful and in some cases may address the issue,” Lewis says of having these sorts of discussions. But it may not always resolve it. “A lot of people, even if it is brought to their attention, may not recognize the bias in themselves,” Lewis adds.
Also, she notes, in cases where an older woman might find herself overlooked for a promotion or pushed out of a role after years with a company, these sorts of conversations aren’t always applicable or appropriate.
2. Follow the reporting process within your company.
You don’t want to jump to filing a complaint externally -- either with a state or local Fair Employment Practice agency or the EEOC -- until you’ve taken it up with your company internally. Reporting protocols vary from company to company, but your employee handbook might provide some guidance. If not, inquire with your HR department.
If your HR department is nonexistent or can’t answer your questions, that’s a sign that you need to file a charge of discrimination with a government agency. Or, if the company can’t resolve the issue, then proceed at the government level to file a charge.
3. Consider filing a charge.
To classify as someone who has experienced age discrimination under the ADEA, you must be over the age of 40. You can have experienced age discrimination in any of the following areas, according to the EEOC: “hiring, firing, pay, job assignments, promotions, layoff, training, benefits and any other term or condition of employment.”
When it comes to hiring discrimination cases, Lewis says, “the EEOC is in a position of being a bit advantaged to private attorneys in bringing litigation and sussing it out, because private attorneys often can’t get access to hiring data the way the EEOC can.”
Once you’ve experienced age discrimination, you have 180 days to file a charge in most states. Individuals can contact the EEOC to schedule an interview with an EEOC staff member to determine whether filing a charge of discrimination is the best course of action. However, you make the ultimate call on whether or not to file.
4. Know there’s a separate charge you can file if someone retaliates against you for reporting.
This applies to retaliation to an internal complaint within your company or retaliation to an EEOC charge. If someone retaliates against you for complaining about discrimination or participating in an investigation into age discrimination, there are protections in place.
“Let’s say an individual has made an internal complaint about her supervisor, and said that her supervisor has made ageist comments and given her unwarranted bad evaluations,” Lewis says. “Let’s say that the supervisor learns of this complaint and the retaliates against that employee because of that complaint. Not only is the underlying complaint something that could be the subject of a charge of discrimination, but then also, the retaliation would be as well.”To find more information about your rights, visit EEOC.gov.