A silent form of gender discrimination awaits every working woman — ageism.

Almost every female in the workforce will experience bias twice — once at the beginning of her career and a much more potent form toward the end. While widely recognized, labor officials have not addressed the rampant problem of age bias among female workers.

Early in their careers, women struggle with unfair judgments about their willingness to sacrifice starting a family and make a commitment to their employers. This initial bias is not as severe and levels out after age 30. But later in life, toward the end of a woman’s career, the prejudice becomes the most pronounced.

AARP reports that 6 out of 10 older workers — both male and female — have witnessed or experienced age discrimination and 90 percent feel it is common. The figures from women respondents are even higher.

While labor officials acknowledge the problem of ageism, statistics show the EEOC doesn’t find merit in a majority of complaints filed with the agency.

Age Discrimination

The US Bureau of Labor Statistics reports that about 40 percent of those over 55 are working and another 2.5 million are looking. It isn’t just to “keep busy”, but a means of accessing health insurance or daily survival for many. Older workers find themselves unceremoniously pushed out of the market.

According to the Center for Retirement Research at Boston College, 60 percent who experience involuntary job loss end up giving up paying work altogether and retiring. A significant percentage of older workers who remain employed report that pay, hours, work locations or treatment they received deteriorated.

Economists claim older workers are not participating in the job market on a voluntary basis, but studies show that significant obstacles exist to landing a job. Others argue that seniors aren’t as adept at negotiating the interview process, or they have not kept their skills relevant. Studies do not bear this out.

The key to getting a job is starts with an interview and that is where discrimination begins.

Because many employers are wary of potential lawsuits, they may avoid the issue altogether by focusing on younger candidates. Hiring managers have become more efficient in their discrimination by not considering older candidates based on clues from resumes such as longer job history or graduation dates. Surprisingly, it is not illegal to ask your age during an interview.

A Journal of Human Resources study found a shocking trend that demonstrates age discrimination is particularly harsh for females. Research showed that younger women were over 40 percent more likely to be offered an interview than equally-skilled, older counterparts.

If that wasn’t bleak enough, there are more older women competing for the few jobs with employers who may be willing to consider them. The Bureau of Labor Statistics forecasts that in five years, there will be twice as many women over 55 in the labor force as those ages 16 to 24.

Proving Age was the “But-For” Cause

Congress enacted the Age Discrimination in Employment Act of 1967 to protect workers over 40. The law recognizes “older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs.”

According to the EEOC, when the law was first passed, age-bias complaints numbered between 1,000 and 5,000 annually. In 2017, the agency received more than 18,000 complaints. Labor officials ruled there was no reasonable cause in over 70 percent of the cases.

The EEOC does little to enforce the ADEA, a point that has not escaped the notice of many employers. In 2016, 23 percent of all charges alleged age discrimination but constituted only two percent of its merit resolutions.

The number of complaints may be artificially low. Those older workers struggling to find a position may feel alleging hiring bias is risky to future job prospects. Discrimination suits are expensive so most victims are reluctant to pursue the matter civilly.

A 2009 US Supreme Court ruling, Gross v. FBL Financial Services, Inc., made proving age discrimination more difficult. Complainants bear the full burden of proof and must show that age discrimination was the primary motivation for demotion or dismissal.

Courts may find that employers didn’t discriminate but made decisions based on “reasonable factors other than age.” This means that a reduction in force of the highest paid employees, even if all are over 40, may be a justifiable business decision for financial reasons and not age bias.

Protecting Older Workers

After a few false starts, Congress seems ready to consider a partial measure to rescue discrimination victims from behind the legal eight ball.

A bipartisan bill may begin to address the burden of proof imposed by the Gross ruling. The proposed legislation amends four laws—the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Rehabilitation Act.

Originally introduced in 2009, Protecting Older Workers Against Discrimination Act is a legislative fix to the US Supreme Court ruling. In 2015, the Senate made another attempt, but the bill languished.

This year, U.S. Sen. Bob Casey (D-Pa.), Ranking Member of the Special Committee on Aging, with co-sponsors Sens. Chuck Grassley (R-Iowa), Patrick Leahy (D-Vt.) and Susan Collins (R-Maine) re-introduced the bill for the third time. Congressman Bobby Scott (D-VA-03), Chairman of the Committee on Education and Labor introduced a companion bill (H.R. 1230) in the U.S. House of Representatives.

AARP supports passage of the bipartisan measure. “We commend these lawmakers for sponsoring this crucial legislation,” said Nancy LeaMond, AARP Executive Vice President and Chief Advocacy & Engagement Officer. “Too many older workers have been victims of unfair age discrimination and are denied a fair shake in our justice system. The time for Congress to act is now.”

While the proposed legislation is a initial step, it will do little to close the gender gap for older women.

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Shelly Fagan

Shelly Fagan is a freelance writer living in Arizona. She is passionate about American politics, business, universal basic income and worker rights. Follow her on Twitter @FaganWrites or on Medium at https://medium.com/@shellyfaganaz

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