Coronavirus (Covid-19) will likely create a perfect storm for older workers. Not only are they at a greater risk for contracting the virus, but their retirement plans may be put on hold due to what most certainly will be a drop in the value of their investments, and the necessity of using funds set aside for retirement to sustain themselves if the country enters a recession.
Despite the doom and gloom of these predictions, there is one bright spot. The U.S. House of Representatives has passed bill H.R. 1230, the Protecting Older Workers Against Discrimination Act (POWADA). The bill awaits passage by the Senate, but it encouragingly received bipartisan support in the House.
In 2009 the U.S. Supreme Court issued a decision, Gross v. FBL Financial Services, 557 U.S. 167 (2009), that made it much more difficult for people who face age discrimination in the workplace to successfully challenge such bias in court. The Gross decision required employees to prove that their age was the “decisive factor” in an employment decision. This is in contrast to the standard that is used in other types of discrimination, which requires employees to prove that their protected characteristic – such as race or gender – was merely part of an employer’s “mixed motive” in making an employment decision.
This “decisive factor” standard, which is also called the “but-for” standard, is much more difficult to prove as compared to the “mixed motive” standard. As a result, despite an increase in age discrimination complaints filed with government agencies, fewer age discrimination cases are actually filed in court, and fewer still are actually won by the plaintiffs. The passage of POWADA would restore the “mixed motive” standard and would make it easier for employees to win age discrimination cases.
What difference does it make to our economy if age discrimination against older workers is minimized? Here are some interesting statistics about older workers:
- Older workers make vital contributions to society and to their workplaces, and their numbers are growing. 41 million workers will be age 55 or older in 2024, and will occupy a larger share of the nation’s workforce.
- As people live longer and healthier lives, a multigenerational workforce is becoming the norm. There are 117 million people 50 and older in the U.S., and the number of workers age 50-plus has increased 80 percent over the past 20 years.
- Workplace age discrimination has a negative impact on the entire economy. The U.S. economy missed out of $850 billion in economic activity in 2018 dues to biases against older workers. An AARP study divided the loss into 57% based on involuntary retirement, 27% based on underemployment, and 15% based on unemployment. This amount could reach $3.9 trillion in 2050. In 2018 age discrimination may have cost the U.S. 8.6 million jobs and $545 billion in lost wages and salaries.
The passage of POWADA would challenge workplace policies that discriminate against older workers and ensure that society continues to benefit from the wealth of experiences and perspectives offered by businesses that employ older workers. And, productive older workers will continue to have the resources available to consume products and services, pay taxes and be contributing members of society.
We all win as a society when that happens.
If you think you have been discriminated against due to your age (gender, race, religion, national origin, disability) talking to a knowledgeable lawyer can bring clarity to the situation and determine whether you’re entitle to restitution. Faye Riva Cohen is the founder and managing attorney of Faye Riva Cohen, P.C. in Philadelphia, PA. She represents residents of PA and NJ who are involved in employment-related disputes with their employers. Her office is located in Philadelphia, PA. She can be reached at 215-563-7776 or at firstname.lastname@example.org.
You can find this post here on my blog as well.