When Those Pats on the Back Become a Shove Out the Door

If your company is downsizing, look around and count the number of gray heads among the crowd of people getting shoved out the door.

That’s the best advice for anxious baby boomers caught in the sometimes brutal revamping of American industry, said Tom Osborne, an attorney with the American Assn. of Retired Persons.

Too often, he warned, dismissed workers accept their fate without wondering if they have been the victims of an illegal act: Federal law protects anybody 40 and over from age discrimination.

“Companies are getting rid of many older workers and justifying it on the grounds of economics,” Osborne says.

Here are clues to look for:

* You have had a string of excellent annual evaluations, and unexpectedly you get a bad one. Some supervisors may give out a bad rating long before the company formally announces its downsizing to justify getting rid of an older worker.

* The number of employees you supervise is suddenly reduced.

* The size of your sales territory is slashed without warning.

* The only people in your section who are slated for dismissal in a corporate reorganization are over 40.

Osborne thinks the volume of age discrimination cases will accelerate as downsizing continues and more workers are alerted to headlines about age discrimination cases.

Rather than passively accept dismissal, he said, the worker should wonder, “Wait a minute, did this happen because the company couldn’t afford me, or was it age discrimination?”

The Supreme Court recently made it easier to bring discrimination cases. It ruled that a displaced worker could sue for discrimination even when his replacement was over 40. This ruling would provide recourse for a 60-year-old, for example, who was replaced by someone 10 or 15 or 20 years younger.

Age discrimination complaints have been running in the range of 17,000 a year, according to the federal Equal Employment Opportunity Commission, charged with enforcing the law against age bias.

In addition to responding to complaints by individuals, the agency also is looking for broad patterns of discrimination. The EEOC is considering filing class-action lawsuits that will have “a bigger impact and send a bigger message,” spokesman Michael Widomski said.

Federal law protects workers at companies with 20 or more employees, and at federal, state and local government agencies. The protections against age discrimination apply to hiring, firing, pay and promotions, and working conditions.

After investigating a complaint, the EEOC can seek a settlement or other measures to deal with the worker’s grievance. A lawsuit is the last resort. The agency recovered $34.7 million for workers last year.

A complaint may be filed in person, by telephone, or sent by mail to the local EEOC office. If there is no local facility, help is available at (800) 669-4000.

Charges must be filed within 180 days of the alleged act of discrimination, or within 300 days in states such as California, which has its own state anti-discrimination statutes.

The clock starts running as soon as a worker believes he or she was treated unfairly. For example, suppose a company announces a downsizing and gets rid of only workers over 50 in your department. The dismissals are to take effect in six weeks. The complaint should be filed as soon as you get notification that you will be dismissed, rather than waiting until you actually leave the payroll, according to the EEOC.

If the EEOC dismisses the case, the person still has the right to file a private lawsuit within 90 days.

Although age discrimination may sometimes be hard to prove, its existence is a painful reality. The first national study attempting to measure such discrimination was done by AARP, which found discrimination more than 25% of the time.

The study was conducted in 1994 for AARP by the Fair Employment Council of Greater Washington, which mailed comparable resumes--one for a mythical 57-year-old and the other for a 32-year-old--to a group of 775 large corporations and employment agencies.

The resumes “indicated that the applicants were identically qualified in job-relevant characteristics such as education and work experience,” according to AARP.

The difference in treatment was dramatic: When there was a job opening, the older applicant got a less favorable response in 26.5% of the cases.

One Fortune 500 company looking for a specialist in management information systems sent a letter asking the younger applicant for more information. A letter went to the 57-year-old announcing that there were no job openings.

Age bias such as this is “a terrible waste of talent, skills and experience,” AARP laments.