It's not age discrimination if you can't prove it

Forget about winning an age-discrimination lawsuit if you get laid off in this lousy economy. The U.S. Supreme Court ruled Thursday that a plaintiff has to prove that age discrimination was the singular cause of a job action. That sets an almost impossible standard for plaintiffs, no matter how blatant the discrimination might be.

I've talked to a number of people who were certain that their age was what prompted their layoff or change in job or pay. None of them had filed a lawsuit because they knew how difficult it is to prove age discrimination. You almost have to uncover a written memorandum stating "Joe is too old for this job; let's replace him with someone younger." If you lose a job or a promotion to a younger, less experienced, less qualified applicant, it's still difficult to prove that age discrimination was the reason for the snub. A discrimination suit can drag on for years. As one attorney told me, "it can consume your life." Few victims of age discrimination want to go through that ordeal. They'd rather just "move on" and try to find a new career. This economy makes moving on harder to do.

Age discrimination has been a particular concern in this recession, and age discrimination claims are rising. Millions of baby boomers, approaching retirement, tempered by decades of solid experience, have found themselves laid off as companies reduce payrolls. The seniority of these workers make them tempting targets for penny pinchers. Their experience and seniority come with higher pay rates. Replacing them with younger, lower-paid workers might be a good fiscal decision, but it's also age discrimination — you just have to be able to prove it.

Five members of the Supreme Court made that even more difficult Thursday. The majority ruled that age must be the sole motive in the discrimination if a plaintiff is to succeed. The plaintiff in this case had won a $47,000 judgment at trial, but the court reversed that. You can be certain that the legal fees have exceeded the size of the judgment, which is now canceled.

Interestingly, the oldest member of the court, John Paul Stevens, 89, wrote the dissenting opinion. He said the five-member majority (Thomas, Roberts, Scalia, Alito and Kennedy) had displayed "utter disregard" for precedent and the intent of Congress in passing the age discrimination law. The minority (Stevens, Ginsburg, Souter and Breyer) said that if a plaintiff can show that age was a factor in the job action, then the employer must show that he had legitimate other reasons for taking the action.

Sen. Patrick Leahy, D-Vt., compared the case to the Lilly Ledbetter sex discrimination case from last year, which infuriated Congress and led to corrective legislation. Age discrimination is rampant, perhaps exceeding gender or race discrimination, but plaintiffs have a very hard time proving this discrimination. Five members of the Supreme Court just made matters even more difficult.

For older workers, unemployment is harder

I ran across an acquaintance last week and discovered we had something in common: Each of us had been "let go" by our employers less than a decade before our anticipated retirements. And we certainly are not alone. In this current recession, millions of the unemployed are workers past middle age, laid off at a time when their thoughts and their aims were turning toward saving toward and budgeting for retirement. Now, instead, we are beating the bushes for companies willing to hire people of a certain age.

I've talked to a number of unemployed friends and acquaintances. Each has had stories to tell about being ignored or dismissed when his age became apparent to potential employers. One friend advised me to remove all references to age or dates from my resume. He had done that and had managed to get his foot in the door for interviews. But he also was convinced that at least once, one look at his gray hair changed him from a potential hire into a failed applicant. Thus far, I have kept dates in my resume because I think my years of experience are valuable, but it is beginning to appear that, to many potential employers, experience is a detriment.

The Age Discrimination in Employment Act of 1967 makes arbitrary job discrimination based on age illegal, but don't think the law eliminates age discrimination. I've been told that these lawsuits often drag on for years, even decades and can consume a plaintiff's life. And it is up to the plaintiff to prove discrimination, usually not an easy thing. Of all the people I know who've thought they were discriminated against because of their age, who were laid off or had their position eliminated while younger, less experienced employees in similar jobs were kept on or who were fired and replaced by a younger worker, only one actually filed suit against his former employer. In that case, he won a confidential out-of-court settlement that he couldn't tell me about except to say that he was satisfied with it.

Whether victims of discrimination or victims of economic changes, older workers face serious difficulties. Many have burdensome mortgages or children in college. Some are caring for both children and parents. Younger workers tend to be more resilient and more mobile, with fewer roots in a particular community, making them available for more jobs. The older, well-planted unemployed have a different perspective. As my jobless acquaintance told me last week, it's difficult fighting the frustration and genuine depression that comes when, after a lifetime of self-sufficiency, dedication and proven value, you find that no employer wants to hire you and few will even offer you an interview, regardless of your skills and abilities.

Odds of finding a job grow longer and longer

This has not been a good week for people searching for jobs, including me. North Carolina's unemployment rate leaped to 9.7 percent in January, creating more and more competitors for the few job openings that exist here. The rate is surely going well into double digits. It's not as if there were a lot of jobs out there in the first place. I scour online job listings several times a week. USA Today has reported that the FBI received 227,000 applications for 3,000 positions. The competition is intense and getting tougher.

Last week, I filled out an application and sent my resume to a Fortune 500 company that was advertising a "communications specialist" opening in Raleigh. I do not look forward to commuting 90 miles a day, but I'm willing to do that if I must. A few days later, I received an e-mail notice that the opening had been rescinded. Like everyone else, this company is tightening its belt.

Later, I filled out an application for a federal government job, also in Raleigh. Again, I was willing to make a long commute, extending my workday by two hours, if necessary. But as I filled out the form, it became increasingly apparent that I would not be considered qualified for that job, which required specific training and experience. After spending 33 years in one business, honing one set of skills, my qualifications for a job were limited to jobs requiring those same skills or something close to it.

Even government jobs, the last refuge in a recession, are being eliminated. Wake County Schools has posted a notice on its Web site that it has imposed a hiring freeze. Nash County has done the same.

It's frustrating to say the least. I fill out applications hoping to gain an interview. On the few occasions I've been granted an interview (I can count those occasions on one hand), nothing more comes of it. Although I am in good health, it's clear from my resume that I am no youngster, and, despite federal laws outlawing age discrimination, it's hard for anyone in my age cohort to find a job, especially one paying the salary to which we had grown accustomed and on which household budgets and mortgage payments had been calculated.

Rather than wasting my time poring over job sites and filling out pointless applications, I've wondered whether I might be wiser to simply invest my weekly unemployment benefits (which are less than half of my former salary) in lottery tickets. The odds of winning Powerball are one in 1.95 million. Those are long odds, greater than your chances of getting struck by lightning. But maybe no worse than landing a job at my age.