Age discrimination in the workplace is a big problem Oregon needs to deal with

Oregon’s workforce is getting older, as more and more Oregonians continue to work into their later years of life. But many older workers run up against age discrimination. Age discrimination in the workplace is prevalent in Oregon and nationally, according to research by AARP. 

In this episode of Policy for the People, we explore the issue of age discrimination in the workplace. Our guest is Andrea Meyer, Director of Government Relations at AARP Oregon. We discuss how pervasive the problem of age discrimination in the workplace is, its consequences, and what Oregon can do to address the problem.

Transcript

Oregon’s workforce is getting older as more and more Oregonians continue to work into their later years of life. Three decades ago, 1 in 10 Oregon workers was 55 years or older. Today, that figure is about 1 in 4 workers. A quarter of the workforce. This trend of workers staying in the workforce during their later years of life is only expected to continue. 

For some older workers, staying in the workforce is a matter of choice. They find work stimulating. Work gives them a sense of purpose. 

But for most people who work during their later years of life, they do so out of economic necessity, surveys show. Their finances are such that they cannot afford to retire. They have bills to pay, and the retirement income doesn’t stretch far enough.

Regardless of the reason why people continue to work into their later years of life, a harsh reality confronts many of these older workers: age discrimination. Age discrimination in the workplace is prevalent in Oregon and nationally, according to research by AARP.

In this episode of Policy for the People, we explore the issue of age discrimination in the workplace. Our guest is Andrea Meyer, director of government relations at AARP Oregon. AARP is a nonprofit, nonpartisan organization that empowers people to choose how they live as they age. In our conversation with Andrea, we discuss how pervasive the problem of age discrimination in the workplace is, its consequences, and what Oregon can do to address the problem.

Juan Carlos Ordóñez (host): Andrea, welcome to Policy for the People. 

Andrea Meyer: Great to be here today. Thank you. 

Juan Carlos: So, Andrea, one of the top priorities for AARP Oregon right now is confronting the issue of age discrimination in the workplace. What led you to prioritize this issue? 

Andrea: A few years ago, we started getting phone calls from members indicating that they were experiencing discrimination in the workplace. We suggested they call BOLI or an attorney. 

Juan Carlos: And BOLI is the Bureau of Labor and Industries, right? 

Andrea: Yes. We suggested they call the Bureau of Labor and Industries or an attorney. In most cases, folks said they already had tried, but they were being turned away. And even though Oregon prohibits age discrimination, thanks to court decisions, it’s actually much harder to prove than any other form of discrimination.

So there was a problem and they were encountering it. Older workers, you know, are staying in the workforce. They need to. For many, it’s a necessity. Not enough retirement money. Social security doesn’t go far enough these days. And for some, there’s a risk of homelessness. So we identify this as a critical issue. Older workers should be protected in the workplace and should be able to work without facing age bias and age discrimination.

Juan Carlos: I wonder if you have information on how big a problem age discrimination is in the workplace. Do you have numbers that give us a sense? 

Andrea: Yes, it is a pervasive problem. And one of the things the AAP National Research Office is well known for is pretty rigorous research on a whole host of areas, including on older workforce issues and specifically age discrimination. And consistently over decades, they’ve shown that those who are 40 and older are facing, discrimination in the workplace. They are seeing or experiencing age discrimination. And a vast majority of those say it’s common. Last year in Oregon, we were able to replicate that research and go out to Oregonians 40 and older. And to be clear, these are folks who are either working or looking for a job.

These are not retirees. And 55% had said they’ve seen or experienced workplace age discrimination. And of those, 88% said it’s common. I think it’s important to add here as well that those who reported it’s common cross party lines; 86% Republicans and 89% Democrats see this as a common problem.

Juan Carlos: And have you seen any differences by demographic characteristics, say, race, ethnicity, gender when it comes to discrimination in the workplace?

Andrea: Sadly, it does have a higher impact on women, lower income workers and communities of color. AARP did national research on those who are 50 and older who are specifically looking for a job. And when it came to Latino, Hispanic and Black African American applicants, they reported experiencing age discrimination at one and a half to two times more than they were experiencing race discrimination when looking for that next job. It is pervasive and it is a problem that our folks are facing. 

Juan Carlos: What does age discrimination in the workplace look like? What have you heard from older Oregonians in terms of what they have encountered? 

Andrea: You know, we have a number of Oregonians who have been willing to share their stories. So I’m pleased here to take a moment to elevate some of their voices.

Let me first tell you about Miki. She has had a very diverse career, leading teams across many industries. She was recruited by a well-known Oregon company, and she’d had several phone interviews. And her skill set was a perfect match for senior management. But when it came time for the high level, in-person interview, most of the questions and comments were about her age. They said her look did not align with their athletic brand and culture, and she knew they were talking about her age. It came as no surprise to her that she didn’t get the job. 

But there are other stories, so there’s also Randy. So Randy has decades experience as a maintenance technician. For the last three years, he’d been working for a company installing equipment. In May, the project was winding down, and his supervisor approached him to see if he was interested in continuing to do demolition work with the company. He said he was very interested, so he then met with the project managers and they hit it off right away. They wanted to know what kind of experience he had with different tools and equipment they used, and he had all of it, and it was clear to him he had the experience they wanted. They even asked him if he was interested in international travel for some projects. 

So the interview was going really well until one of the project managers asked him, is it okay if I ask you how old you are? It was an awkward question that caught Randy off guard. I think it would catch most of us off guard. In fact, he didn’t think it was appropriate to ask him how old he was. But like many of us, when you’re looking for a job, you don’t necessarily feel you can say no. So he told them he was 62 years old. The interview continued, but shortly after that, the same project manager commented that he thought Randy would be well, he would get, quote, too tired from the work and that the job may be, quote, too much for him to handle. He responded that he could handle the job. In fact, Randy offered to work for a few weeks and if it didn’t work out, no hard feelings. But rather than get a positive response to this, they brought the interview to an end. And again, like Miki, Randy was not surprised that he didn’t get the job or in fact, any job from that company.

We also know what’s going on inside companies and how they use legitimate business changes, like the need to reduce the workforce as a way to get rid of older workers. Miki, in her long career, worked for another major national company and she was part of management. They had to restructure and layoff the higher paid employees. Except in this case, it became clear this was a proxy for getting rid of the older workers.

So what they did is the management brought in a whiteboard to the room. They put everyone’s name, their age, when they thought they were to retire. And then they targeted only the oldest employees. They didn’t lay them off because that would have been too obvious. Instead, they were told they’d have to reapply for their job in this new structure, except they made sure that they would not be qualified so that they could be laid off and not rehired. And if any of those folks did apply, they were actually not considered. And sadly, although Miki is sharing a story of one company, we know too often this happens in Oregon. 

So let me share one last story of an HR consultant in Oregon. This person has worked for decades overseeing hiring, layoff and other employment decisions for employers across the state.

The employers that the HR specialists worked with were very cognizant of the potential issues around discrimination based on sex and race. But unfortunately, this consultant often saw blatant forms of age discrimination. They were frequently hired to do what’s called adverse impact analysis. It’s where an employer wants to take an action but doesn’t want to disproportionately affect protected classes.

While these employers want to know the impact of their decision on race and sex, when the H.R consultant actually pushed back and suggested including age, they were told on more than one occasion that the employer was not going to consider age. In fact, the employers would say they don’t worry about it because the law is easy when it comes to age discrimination and they can defend against those cases.

So the sad reality is, whether it’s in the hiring or the firing stage, businesses are run by people and age bias is all too frequent and worse in too many situations. It’s an accepted form of discrimination.

Juan Carlos: You already touched on this a little bit, but I’m wondering if you can say more about the impact that age discrimination has on older workers. How does it affect their economic well-being? 

Andrea: Well, most workers 40 plus we know are working because of financial reasons, because of money. Our research again shows that that’s the most important reason, whether it’s saving for retirement, the need for additional income because Social Security isn’t sufficient, or the need to maintain health insurance.

They have this need. In fact, Howard had years of management experience. He sounds much younger on the phone and was successful at the initial recruitment stage. In fact, the recruiters were very excited to promote his application. But once it turned into an in-person interview his age, he’s in his early 60s, even if he might sound like he’s in his early 40s, became an apparent issue.

So he ultimately took a job in a large company on a sales floor because he needed the work. And the pay in this case was a significant drop in his income. But out of financial necessity, he needed to stay employed. I would also add older workers have a harder time finding a new job, and we know from our research it takes older workers.

And as I’ve noted earlier, unfortunately, it hits older workers, who are low income women and communities of color. And for some, the fact that they have lost their job or can’t find another job can be catastrophic. The homeless rates in Oregon are increasing, and 21% of those experiencing homelessness in Oregon are 55 and older. And studies outside of Oregon show that the primary cause for 24% who experience homelessness is because of a loss of a job.

And again, AARP research helps inform us. And it shows how hard it is for older workers to recover financially from a longer period of unemployment; 22% said they did not think they could ever recover financially. 

Juan Carlos: Are there impacts on older workers beyond just the dollars and cents? Just the economic impact? 

Andrea: There is certainly an impact on mental health and longevity. As the acting chair of the Equal Employment Opportunity Commission wrote in a 2018 report, the emotional harm of any discrimination is traumatic for older workers. They feel betrayed when they have given many years of working their life for one employer. Research shows that perceived age discrimination results in serious negative health effects. In part because with advancing age, older individuals are exposed to more negative age stereotypes that makes them actually feel older than their chronological age, and forced retirement correlates with significant declines in mental and physical health, and that for some, it can lead to shortened life spans.

Juan Carlos: And what about impacts on the broader economy that result from age discrimination in the workplace? 

Andrea: The demographic data is quite clear that our population is getting older, and every year older people make up a bigger share of the population. In Oregon, 37% of the population is 50 plus. So with our population aging and economic demands, the need for older workers to stay in the workforce is only going to get more prevalent. But unless we address the age bias and age discrimination, older workers are going to face barriers and an economic decline. 

Juan Carlos: Let’s switch gears here and talk about the solution, how to address the problem. And let me step back for a second and say that we do have federal and state laws that prohibit age discrimination. So why are these not working properly? 

Andrea: So you’re correct. Oregon has a law that prohibits age discrimination. But that’s all it says. And Oregon’s not unique. Oregon courts tend to rely on federal analysis when it comes to discrimination claims. So we do need to first look at the federal law. Title VII prohibits discrimination based on race, sex, religion, but it doesn’t include age.

That’s actually a separate federal law called the Age Discrimination in Employment Act, he ADEA. And everything was fine for about 30 years, with both Title VII and the ADEA providing robust protections for workers. But in 2008, the U.S. Supreme Court, in a very complicated Kentucky retirement case, broke the age discrimination laws, I like to say. They made it much harder to prove age discrimination.

And I think it’s interesting to point out that the dissent stated that this is now making it harder for older workers to prove age discrimination. It was authored by Justice Kennedy and signed on by Justices Alito, Scalia, and Ginsburg. So they all saw that in comment. Now, when the federal law got broken, a natural response could be to have Congress fix it, but sadly, Congress has not chosen to fix it.

Instead, what has happened is federal courts across the country have continued to weaken the age discrimination law. And Oregon courts, as I’ve noted, tend to follow that analysis. So they’re using bad federal law. And if we update our law, we can help make it stronger.

Juan Carlos: So how can Oregon improve the situation? How can Oregon strengthen its laws to better protect Oregonians against age discrimination and is is there going to be a bill in the 2025 session, legislative session that will deal with the issue? 

Andrea: Yes, I’m very pleased that we have pre-session filed our legislation and we have over 39 bipartisan sponsors on our legislation. And it has two fixes. 

The first is to address the firing, fix the courts’ unwillingness to look past the evidence that what’s happening is age discrimination. It most often shows up when the employers use retirement status, pension status, salary or length of service as a proxy for age discrimination. Why don’t you hurry up and retire? We don’t really like gray hair people around here. Comments that have not been sufficient in cases to get past the courts, such that they look at what’s really going on. We want to be able to show in what Miki talked about, what she was doing in a company where they were really using salary as a way to get rid of older workers.

So we would update Oregon’s age discrimination law because it only just says age discrimination is prohibited for anyone 18 and older. We are one of six states that protect Oregonians 18 and older. But we’re going to update the definition to say that age may include retirement and pension status, salary and length of service, when those factors are used as a proxy for age discrimination. To be clear, the employee will still need to prove that it was age discrimination.

But it will give clear direction to employers and the courts that the kind of actions that have been happening since the U.S. Supreme Court decision 15 years ago should no longer happen. And Oregon updating our age discrimination law is completely consistent with our practice of updating our discrimination law when courts make bad decisions. So many decades ago, Oregon updated our sex discrimination law as a result of a bad court decision to say it includes childbirth and pregnancy, because we knew that pregnant workers weren’t being protected and it was important to update the law. More recently, we did this with race discrimination to expand the Oregon law to say that may include hair and hairstyle, because we know that’s being used as a subterfuge for race discrimination. 

Our second fix is what I call the hiring fix. As we’ve discussed, it takes older workers longer to find that next job. Now, unfortunately, we can’t eliminate all age bias, but we can eliminate applications that ask for age, date of birth, and graduation dates.

It’s a barrier to people getting their foot in the door. And frankly, employers don’t ask us our sex or race, but they still ask about age. Unless a job has an age qualification. And I’ll give you an example. Liquor license or commercial driver’s license where you need to be over 21. You don’t need to ask the age. And the reality is, employers only need your graduation dates if they make a conditional job offer, and they want to make sure the applicant isn’t lying about their education.

Now, I experienced this myself a few years ago when I was looking for a job. I was told to remove the graduation dates from my resume and I was initially quite surprised. But then when it was explained to me what’s going on, I understood and I can control my resume. So I did remove my graduation dates. But the area that folks are still encountering barriers is those online application forms. So you want to know that I have a BA for the job. Check. I check the box. And you want to know where I got it from? I can enter that. But then you want to know what year I graduated, and I can’t hit the next button unless I enter that. So we know that’s a barrier to keeping older workers from getting their foot in the door.

And our fix would simply be that prospective employers can’t ask you your age, date of birth, or your graduation date until after the initial interview. And that’s actually a compromise with business because they don’t like it. But we thought, at least let us get our foot in the door. And when I show up, you might understand that I’m an older worker, but hopefully I can persuade you that I’ve got the skills.

So those would be our two fixes. As I said, both kind of a hiring and a firing fix. 

Juan Carlos: So, Andrea, have you heard opposition to these legislative proposals, these fixes? And if so, what is the core of the opposition’s argument and how do you respond to those arguments? 

Andrea: Well, from our past experience, we’re aware that business opposes the legislation. And while I always prefer to let our opponents speak directly, I can report what we’ve heard is basically that they don’t think the law is broken. And frankly, my response is for them, it isn’t broken. It’s working just fine. It’s broken, however, for the older worker. 

So we need to fix it and right level the playing field. Again, Oregon and states across the country used to have robust protections against age discrimination until the courts made it much harder to prove. So simply, we’re trying to right level this back to where it used to be, such that if an employer is a bad actor, they’re not able to get away with it. Like our HR consultant shared. Happens over and over again in Oregon. 

Juan Carlos: Andrea, for listeners who may be interested in getting involved in this issue of addressing age discrimination here in Oregon, what would you recommend that they do?

Andrea: Well, we want legislators to hear from their constituents. And actually to do this, AARP has created an online petition. We’re asking folks to sign this petition. It urges their legislators to support updating the Oregon workplace age discrimination law. And in the beginning of 2025, when the legislative session begins, we are going to hand deliver these petitions to every state senator and state representative to show them that they’re constituents support updating the law. So if folks do want to sign our petition, they can go to aarp.org/orfuture. So that’s aarp.org/orfuture. 

Juan Carlos: Andrea Meyer, thank you so much. 

Andrea: Oh, thank you so much.