Unmasking Age Bias

By GEORGE J. CHURCH

Jim McElyea lost his job as general counsel of a major consumer-products company in 1996 supposedly because of downsizing--but he never knew for sure. It wasn't until five months ago that he finally found full-time work again, as general counsel of White Cap, a container maker based in Downers Grove, Ill.--but at a salary a third below the six-figure income he earned in his old job. Some prospective employers even refused to interview him, McElyea, 50, reports, although he asked for no more money than applicants with 10 to 15 years less experience. Meanwhile, his former company promoted a 36-year-old to fill his allegedly eliminated job. "I suffer from having gray hair and a lack of hair," says McElyea. "There's a perception that younger people have more energy and are agents of change."

But isn't age bias in employment every bit as illegal as race or sex discrimination? Officially, yes, and McElyea briefly considered his legal options. But he knew only too well what forbidding odds he would face in a lawsuit. He had defended the company against many age-discrimination suits and beaten every one. "There is real bias out there," says McElyea, but it is hard to prove.

Right on both counts. The unemployment rate, 4.5% in July, is close to a 28-year low, and anecdotes abound of employers desperate to put any warm body on the payroll. But people in their 60s or 50s--and sometimes even in their 40s--still have inordinate trouble holding on to the well-paid and responsible positions they have spent long careers working up to or finding jobs commensurate with their abilities and experience. Moreover, recent court decisions have made age bias even harder to prove than at any other time during the 31 years the Age Discrimination in Employment Act has been on the books.

To be sure, there are people who deny nearly all the above. "There is no major age discrimination in recruiting," says Ruth Graham, who owns a Washington employment agency. There is much less today than there was 20 years ago, anyway, says Shirley Brussell, 77. She is executive director of Operation ABLE, a Chicago-based employment and training agency that specializes in helping job seekers age 50 and above and proves by its mere existence that older workers get more assistance now than they once did.

On the other hand, the American Association of Retired Persons finds age discrimination still "pervasive." In a not-yet-published study, it dispatched pairs of "testers," one 57 and one 32, to apply for 102 entry-level sales or management positions. Result: though they presented equal credentials, says AARP, the older applicants received less favorable responses 41.2% of the time. Three-quarters of those responses occurred before the older applicants had even been granted an interview. Sally Dunaway, an AARP lawyer, says bias is hurting "people at younger and younger ages. It used to be 65. Now it is 55, 48 or even 42."

In fact, the picture is mixed. Though often disguised, age bias obviously persists even in a supposedly desperately labor-short economy. There is too much anecdotal evidence to permit real doubt. But it is hard to determine its extent or whether it is increasing or decreasing, since anecdotal evidence is about all there is.

Court records are no help. The number of age-bias suits filed with federal and state agencies has stayed roughly level for the past few years. One reason may be that more and more corporations are writing into employment contracts a clause under which the employee agrees never to file an age- (or race- or sex-) discrimination suit. Jeffrey Taren, a Chicago attorney who specializes in employment law, says the number of age-bias cases his firm has agreed to take is actually declining. Not, he hastens to add, because there is less bias to fight. Rather, word has got around about how hard it is to win an age-discrimination case, so "people feel it is futile to contest the actions of their employer."

In addition, although age-discrimination suits rarely become known beyond the parties involved, some workers fear that word of one might get to a prospective employer and hurt their chances of being hired. Moreover, if an employee wins an out-of-court settlement, the employer almost invariably demands an ironclad pledge of nondisclosure. Unlike widely publicized jury awards in discrimination cases, such employee-settlement victories provide no information to outsiders of the extent of the discrimination a company has conceded.

On the brighter side, most older workers, including those bounced out of good jobs that were later filled by younger people working for less money, eventually find some kind of new employment. Trouble is, they have to search long and hard, and then they must often settle for low-paid, low-skilled work.

Sandi Carbone, 49, had to go all the way back to the job she started out with 28 years ago: bank teller. She had worked her way up to managing a branch of Chicago's Cole Taylor Bank. But in 1995 she and six other officers were suddenly shifted to newly created sales jobs that they suspected were way stations on the road to dismissal. Cole Taylor Bank denied any wrongdoing, insisting that all were welcome to stay on in the new sales positions. Said the bank's attorney Steve Levin: "The real quarrel is, they didn't like the new positions." Carbone did indeed quit, but she could get only one other banking job, and that ended after 10 months. For seven months she worked nights as a hotel receptionist, earning $6.50 an hour--not enough to keep her from declaring personal bankruptcy. A year ago, she wound up as a teller again. Salary: $18,000, less than a third of the $58,000 she had earned three years before.

"The people who finally get hired are always less qualified and younger than I am," grouses George Daniels, 53, a power-house operator at the Savannah River Site, a nuclear-power facility in South Carolina owned by the U.S. Department of Energy, until he was laid off last year. At some chemical companies he has applied to, he says, "the whole personnel in the operator group is younger than 40, and I think they want to keep it that way." Managers, he suspects, "feel they can't manipulate older people like they can younger people who don't have experience. Younger people will accept something they are told without question, whereas I might not. I might have enough knowledge to say, 'That's not right.' A younger person probably wouldn't."

What particularly gripes the old, and sometimes not-so-old, job seekers is the frequent necessity of begging for work from people about the age of their children. "Most of the human-resources people are in their late 20s," says Dan McMenamin, 44, a long-range planner ousted when Zion Nuclear Power Plant in Illinois closed.

Jonathan Cottin, 61, a longtime journalist and Washington lobbyist who has been without full-time work since 1993, says, "We intimidate people who are younger than we are and who might be our boss. They see their parents, and if they've had a bad relationship with their parents, that counts against us. Secondly, the human-resources departments in companies do the math and figure out that in five to seven years we might be a burden on health or pension programs. There isn't much attention paid to the merit we can bring to the job."

Over a three-month period this year, Cottin reports, he sent out more than 400 applications, including many for positions for which he thinks he is overqualified. But in the past five years he has been able to find only part-time consulting work, some of it reviewing documents for law firms (he has a law degree) for $22 an hour--a far cry from the $100,000 or so a year he earned in his last full-time job as director of external relations for EG&G Inc., a big global-technology firm. Even some parts of the Federal Government discriminate, Cottin laments. "Two federal agencies would not even bring me in for an interview. While I fitted the printed profile for the job, I didn't fit the 'internal profile,' which demanded someone younger and cheaper."

It was, of course, the Federal Government that in 1967 formally made age discrimination illegal. But in a landmark 1993 decision involving a pension-vesting case, the U.S. Supreme Court made it much more difficult to prove age was the cause of a layoff. After the ruling it became easier for an employer to cut payroll by replacing higher-salaried workers with lower-paid ones--even if those let go are all much older than the employees who take their place.

In lower courts too "there has been a vast increase in the number of summary judgments against plaintiffs" alleging age discrimination, says Eric Nelson, a New York attorney specializing in employment law. Chicago lawyer Taren adds that some courts have even interpreted employer comments such as, "This company is looking for young blood," or, "You can't teach an old dog new tricks," to be innocent remarks rather than evidence of serious bias. The upshot is that if an age-discrimination case is to succeed, an employer virtually has to tell a worker in so many words, "We don't want you because you're too old."

Nearly all employers these days are too knowledgeable to say anything of the sort. A former senior vice president of one of Madison Avenue's biggest ad agencies tells this story: In February 1996 he got an unexpected summons to the office of a new and younger boss. On his way in he nodded to a woman he did not know; he thought he was about to be given a new account with which she was somehow connected. But in a five-minute interview, the boss told the executive, who was then 47, that he was being fired for "lack of performance" (though he claims he had received only stellar performance reviews during his 12 years with the firm) and that he had one day to clean out his office. The fired executive found out later that the woman was head of the agency's human-resources department. He presumes she was there so that in any ensuing legal action the company would have two witnesses to what was said.

Arthur Morse, a onetime Chicago ad executive, encountered a common and much subtler approach. Four years ago, when he was 63, Morse relates, his agency brought in a "30-ish" woman to "relieve" him of some of his workload. "I could see the handwriting on the wall," says Morse. Two years later his job was eliminated, but he was given another assignment. That too vanished in a year, and "my career was over," says Morse. "Nobody wants to talk to you because of your age or your salary" ($65,000 in his case). In July, Morse, still unwilling to retire, landed a job--assembling promotional materials for a printing company--through a temporary-help agency.

For all the difficulties they face, older job seekers are finally benefiting from a sort of affirmative-action program, launched not by the government but by temporary-help and other employment agencies.

Generally, says AARP, employment agencies are part of the problem rather than the solution. In fact, its about-to-be-published study asserts, agencies discriminate more often and more blatantly than employers who hire directly. "With or without explicit instructions from their clients," says AARP, "many employment agencies assume that older applicants...should be automatically screened out."

But a minority of agencies and some private groups are taking the opposite tack and aggressively recruiting older workers for jobs that employers have a hard time filling. In 1987, Kelly Services, a leading temporary-help agency based in Troy, Mich., started one such program, called Encore. About 14% of Kelly temps are now 55 or older, vs. 10% five years ago. "We can't find enough of them," says Carl Camden, executive vice president of operations. "They have the experience and work ethic employers want." (Camden is too tactful to add that those employers might not want quite so much experience and work ethic if they had to pay for it full-time and incur pension obligations to boot.) Operation able, with seven affiliate offices from Los Angeles to Boston, has built up an over-55 clientele accounting for about a third of those it helps.

The jobs, though, are hardly what many older workers would want on a permanent basis. Lawyer McElyea, for example, got a part-time job through Kelly doing legal work for a telemarketer on an hourly basis with no benefits. It was O.K. as a stop-gap, he says, but "a real dead-end job."

Operation ABLE, says case manager Roland Fullilove, 56, often has to tell its 55-and-over clients "not to expect the same kind of position they had before. No employers are begging to pick up your hefty salary, even with all your experience." The jobs it finds for seniors typically pay $18,000 to $30,000 a year--considerably better than nothing but hardly exciting.

And those who feel their abilities and experience are worth more? They can only echo Cottin, the former lobbyist: "When I read the figures on the unemployment rate I'm very troubled, because no one is seeing the real problem in this country. Someone needs to tell Bill Clinton that some of the most talented people in the country aren't working simply because they were born before 1950." Someone should convey the same message to employers who moan about how hard it is to find qualified help in today's tight labor markets.

--Reported by Edward Barnes/New York, Wendy Cole/Chicago and Chandrani Ghosh/Washington

With reporting by Edward Barnes/New York, Wendy Cole/Chicago and Chandrani Ghosh/Washington