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The New Normal

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Connye Harper Connye Harper

By Connye Harper

Of all of the protected classifications included under the umbrella of the Committee on Workplace Diversity and Inclusion, "age" is unique. It is the only classification that transcends the boundaries of gender, color, race, and ethnicity.


Recently, a $500,000 Ohio State Court judgment was awarded to a former state employee in compensation for his claim that the state Natural Resources agency discriminated against him by hiring someone 15 years younger.  The award to retired engineer Richard Warden included back pay, potential future earnings, court costs, and attorneys' fees.


The Court found that Warden scored the highest of any applicant when applying for a full-time job estimating the cost of reclaiming forfeited coal mines.  Warden had worked for the state for nearly 30 years and retired then was rehired on a contract basis for the coal mining job.  Warden was rejected when the agency made the contract job a full-time position and hired someone 15 years younger.


The outcome in this case compels a closer look at the facts and figures that define the "New Normal" for HR professionals.


FACT:  by 2050, over one-fifth of the U.S. population will be age 65 or older, up from the current figure of one-seventh.


FACT:  Every day in 2013, 10,000 Baby Boomers will have their 65th birthday.


FACT:  Anti-aging technologies—from memory–enhancing drugs to high-tech joint replacements—combined with healthy lifestyles will increase longevity.  Consequently, by 2050 life expectancy will surpass 100 years in industrialized countries such as the U.S.


FACT:  Longer lifespans will be accompanied by longer workspans.


The Warden judgment points to the need for employers to change attitudes toward older workers.  Too often an older worker is viewed as a burden while younger applicants are given preferential treatment in recruitment and selection decisions. The GAO report cites several studies that explain why companies favor younger workers:  They typically earn less; employers expect they will have less of an impact on health care costs; and they will not have an issue about working for a younger boss. But in economies like ours where knowledge rules, the experience of an older worker grows in value.


An older population also underscores the need for flexible workplace scheduling policies to accommodate employees of all ages.  All employees will eventually need time to care for their parents as well as their children or siblings or spouses.  Flexible schedules, including telecommuting, facilitate those responsibilities that may not be covered by current leave laws.
Ongoing training and "reverse mentoring" programs will ensure that older workers keep abreast of technological advances.  Employees' longer work lives will give companies the benefit of greater productivity gains from their training investments. Company sponsored wellness programs produce healthier employees of all ages.  On site clinics save workers time and focus care on prevention and early disease detection which, in turn, lowers costs.


At the other end of the spectrum are older workers who, like Warden, are not employed but want or need to be. Workers over age 55 make up 54 per cent of the long-term unemployed—defined as people out of work for more than 27 weeks—up from 50.9 per cent in August 2012, according to an analysis by the AARP Public Policy Institute. Moreover, older Americans stayed jobless longer—an average of nearly 56 weeks compared to 37 weeks for younger workers.  When they do find jobs these employees typically take a bigger pay cut than their younger counterparts, according to a Government Accounting Office (GAO) study released in 2012.

Older workers who confront bias typically have a difficult time pursuing relief since the 2009 U.S. Supreme Court decision that made it more difficult for older workers to prove claims of illegal age discrimination,  HYPERLINK "http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf" "_blank" Gross v. FBL Financial Services.

In response to the Gross decision, Republican Senator Chuck Grassley and Democratic Senators Tom Harkin and Patrick Leahy introduced the "Protecting Older Workers Against Discrimination Act," which would amend the Age Discrimination in Employment Act of 1967 (ADEA) to make it easier for a plaintiff to prove illegal age discrimination.


Meanwhile, as the Warden judgment illustrates, clear violations of existing law will continue to be costly for employers.

Connye Harper serves as the SHRM Hawaii Committee Chair Workplace Diversity and Inclusion.  She is also a consultant, mediator, arbitrator, and investigator at Harper Strategies, LLC, Human Resources Consulting. Connye can be reached at connye@harperstrategies.com.