With the economy adding fewer jobs than were shed in the last recession, and unemployment among young people also high, these fears are realistic. The article touches on the social impact on our culture as a whole if people too young to collect social security join the ranks of the homeless. Ironically, the stereotypical attitudes that often act against older applicants may become reality: they are not conversant with the latest business software, if they’ve been out of work for years.  After a point, it’s no longer age discrimination, it’s simply hiring the most qualified workers.

The Supreme Court allows an employer to win an age discrimination case by bringing up a “reasonable factor other than age.”  Smith v. City of Jackson, 544 U.S. 228 (2005).  In the scenario above, an employee who truly lacks necessary technological skills for his job, regardless of his age, is a reasonable candidate for the reduction in force.  But these factors have to be applied in an objective manner so as to avoid stereotyping.

The Equal Employment Opportunity Commission highlights this dichotomy in its proposed rules on reasonable factor other than age. The EEOC’s rules would require that the criteria used to determine the layoffs are objectively reasonable, and that they strive to ensure that they are applied in a way that avoids, as much as possible, subconscious discrimination.  For example, the EEOC warns that “criteria known to be susceptible to age-based stereotyping, such as flexibility, willingness to learn, or technological skills” should be backed up by training in judging each employee’s performance level, and how to avoid age-based discrimination in doing so.  75 Fed. Reg. at 7217.  When managers are given too much discretion, and little training on the application of these criteria, the reasonable factor defense weakens.

Importantly, the EEOC addresses the common issue of a company firing its most expensive workers.  This looks objectively reasonable, but the EEOC warns that when it has a disproportionate impact on older workers, the company should also consider the revenue that the highly paid people bring in when deciding whom to cut.

These rules are open to comment until April 19.

Despite this barrier, the Fourth Circuit reversed summary judgment in favor of the employer.  Unfortunately, the case is not published, which limits its precedential value to others.  But in terms of a pro-employee decision, it’s big news.

In Dean Inman’s case, his boss claimed that Inman had lied about supporting the company’s decision to freeze salaries, and repeatedly refusing to implement a program that the supervisor wanted.  Often those kinds of allegations are enough to get an employer judgment without having to go to trial.  They sound plausible enough, and Inman did not deny that he found the program a waste of time and refused to work on it.

But there was also evidence about age bias, in the form of adjectives betraying stereotypes about older workers.  Assumptions about older workers’ limitations may be even more prevalent in high tech jobs than others, where the young are seen to be the leaders of the high technology revolution.  His termination was supported by the supervisor’s wish for a “more energetic person” as leader of the technical department, “for the appearance of a revitalized company.” Mr.Inman was told that he did not fit the “model” or “profile” the company wished.  In addition, the decisionmaker was paying close attention to a consultant who advised the company to appoint four people to a task force, and specified that they should be “young,” “energetic,” “future people.”

It is encouraging that the Fourth Circuit recognized these statements as indicators of age bias.   Even though the employee has the burden of proof to show that discrimination motivated the decision, this evidence entitled him to have a trial and let the jury decide who was telling the truth

Age claims in 2008 outstripped 2007 claims by 30%.  There is no reason to expect that 2009 will be much different.  The biggest difference will be the enhanced difficulty of proving the claims.  In the last weeks of its term, the Supreme Court issued several important decisions of interest to employment law practitioners.  One of them had less newsworthy facts than the white firefighters case, but will have a far greater impact.  In Gross v. FBL Services, the Supreme Court raised the level of proof needed by a discrimination claimant under the Age Discrimination in Employment Act.  The Court unaccountably decided that the burden of proof for age discrimination plaintiffs should be higher than that for victims of race, sex, national origin or religious discrimination.  These cases are difficult to make into headline news, but the reality is that most workplaces are free of open and hostile discrimination.  Every educated person knows better than to spout racist invective.  That does not mean that we are truly in a post-racial society, but rather that much of the bias has gone underground.  The difficulties of proving that, “but for” the age of the worker, he or she would not have been fired can be insurmountable.

Age discrimination is an odd kind of bias, since it’s not based so much on “otherness,” as racial discrimination might be, as on assumptions that older people are slower, less technologically oriented, or simply in the way of the progression of the young.  I have long thought that federal judges, especially, have trouble understanding the dynamic of age discrimination, since they are usually rewarded for their experience and seasoning.  No one makes a federal judge retire, and no one (except perhaps a peer) dares to suggest that he is losing any competency.  They are almost without supervisors, so they do not have the experience of having their territories restructured, their direct reports reassigned, or other sly methods of interfering with their performance.  When these changes are designed to interfere with performance, or have the effect of reducing an older person’s performance ratings, age discrimination may be the motivation.  But in these economic circumstances, when restructurings and reductions in force are commonplace, it is not going to be easy to prove bias.

In an earlier era, when the Supreme Court tipped the scales toward employers, Congress reacted with the Civil Rights Act of 1991.  Perhaps Congress will take the reins again.