The first millennials turn 40 on Jan. 1. That’s old enough to sue for age discrimination

A woman waves a “Vote” sign as people gather outside of the U.S. Supreme Court following the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, in Washington, U.S., September 18, 2020. REUTERS/Al Drago

On Jan. 1, the oldest millennials, born in 1981, will turn 40 and officially become eligible to sue employers under the Age Discrimination in Employment Act (ADEA) of 1967.

It may seem silly to fret about age discrimination among a generation long vilified as the embodiment of entitled youth. But research shows that for many millennial women, age discrimination is already a reality – one that will become critical during the recovery from the coronavirus crisis, as discrimination tends to peak during and after recessions.

“Most people aren’t going to face age discrimination at 40, but there will be some women who will be facing age discrimination by then,” said Tulane economist Patrick Button, an expert on the ADEA and its effects.

In a recent analysis, Button and collaborators David Neumark of the University of California at Irvine and Ian Burn of the University of Liverpool sent U.S. employers more than 40,000 résumés and totaled the responses they got by age. (The work was published in the Journal of Political Economy, a top-rated journal that recently investigated its top editor after controversial comments about the Black Lives Matter movement.)

By age 50, they found, women were getting significantly fewer responses than their younger peers. Fifty-year-old men, on the other hand, seemed to face no age penalty. But by age 65, widespread age discrimination set in as job-seekers of both genders saw a sharp drop in callbacks.

Texas A&M economist Joanna Lahey, widely cited for her work on labor market discrimination, found a similar trend when she and her collaborator Douglas Oxley brought about 150 people into a lab and had them each rate 40 unique résumés. Ratings of women’s résumés dropped off sharply starting at age 36 or earlier, while ratings for men didn’t decline substantively until they hit their 50s.

Lahey’s analysis, soon be published in the Journal of Policy Analysis and Management, also found a notable exception to the pattern: For Black men and women, discrimination was strongest before age 40. By middle age, Black workers’ résumés were rated higher than those of White folks with identical qualifications.

“Basically, as Black people get older, they get more attractive to employers, and then as they get older still, they get less attractive again,” Lahey said.

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The difficulties faced by both millennials and older workers are compounded by a once-in-a-generation economic crisis. Such events can create fertile ground for discrimination. With a surfeit of desperate, unemployed applicants, employers can afford to disregard workers from entire swaths of the population.

Indeed, during the Great Recession, a one-percentage-point rise in the unemployment rate in an area corresponded with a 3.4% jump in firing-related ADEA charges and a 1.4% increase in hiring-related ones, according to a new working paper from economists Matthew Knepper of the University of Georgia and Gordon Dahl of the University of California at San Diego. Furthermore, Knepper said, the success rate of charges increased during the recession, indicating that the rise in charges was propelled by an even larger jump in illegal discrimination.

The economists also analyzed responses to thousands of résumés and found that a one-percentage-point uptick in an area’s unemployment rate led to a 15% drop in résumé callbacks for older women.

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When you evaluate a résumé, you must create a mental model of a person you’ve never met based on a skeletal set of qualifications and demographic information. Will they show up for work on time? Will they swipe the petty cash? Will they stick around after you spend months training them?

Often employers take certain shortcuts – which can look a lot like discrimination. For example, absent other evidence, an employer may assume that a young Black man is more likely to have a criminal history, as economists Jennifer Doleac of Texas A&M and Benjamin Hansen of the University of Oregon showed in an influential Journal of Labor Economics analysis. This probably helps explain why younger Black workers face more employment discrimination than their older peers.

Or, in the case of age and gender, Lahey points out that employers may assume a woman in her 40s is likely to have a child in elementary school, which could make her schedule less flexible and make her less available for early-morning or evening shifts.

For a working mom, Lahey said, elementary school is a scheduling nightmare – as she spoke with The Washington Post, her child practiced violin in the background. Day care is a godsend for the youngest children, Lahey said, and the oldest children can take care of themselves – but in the ages between day care and adolescence, a parent can’t just leave a child alone to pick up a last-minute shift.

More broadly, Button wrote, people tend to stereotype older workers as inflexible, unambitious, physically and cognitively weak, and bad with technology. These stereotypes are unfair and inaccurate, but often don’t produce the kind of paper trail needed to prove this sort of discrimination in court.

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When the ADEA was enacted in 1967, it lifted employment rates for men over age 40 by about eight percentage points – compared with 4.2 percentage points for women over age 40, according to an analysis by University at Buffalo economist Joanne Song McLaughlin published this year in the journal Labour. For workers age 50 and older, the difference was even more pronounced.

“Age discrimination laws were not so effective for older women,” McLaughlin writes.

Taken alongside the research mentioned above, McLaughlin’s findings raise a question that will soon be of growing relevance to millennial women: Why can employers get away with such obvious discrimination against older women? Why don’t anti-discrimination laws protect them?

According to McLaughlin, it’s probably because older women fall between the cracks. In most courts, women must sue for either age discrimination under the ADEA or gender discrimination under Title VII of the Civil Rights Act – not both at once.

If they sue for age discrimination, older women have to prove they’re treated worse than younger workers. But to do so in court, they can use only data split by age, which will be diluted by data from older men, who can face less discrimination.

If they sue for gender discrimination, older women have to prove they’re treated worse than men. But to do so in court, they can use only data split by gender, which will be diluted by data from younger women, who can face less discrimination.

What older women really need, McLaughlin said, is the power to sue for both age and gender discrimination at once. That intersectional discrimination would be much easier to prove, McLaughlin said.

Despite these significant limitations, the ADEA should provide millennials – especially millennial men – with a measure of protection against losing their jobs to Zoomers as they age. It did the same for baby boomers and Gen X before them. And keeping millennials productive – and paying into Social Security – longer will boost the entire economy.

“The costs of enforcing age discrimination laws are small compared to the benefits of reducing age discrimination,” Tulane’s Button said.




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