Age Discrimination in Employment Act (ADEA): How far?

[RNat55, ADN, RN]

I started nursing school in my early 50s. I was excited because I felt it would provide an opportunity to contribute meaningfully to a country where I recently relocated. I became a registered nurse at 55 and started my job hunt. I was so sure it was not going to be that difficult to land my first nursing job, after all, I have heard so much about this nursing shortage. But as I attended interviews, I could see how age was becoming a factor but not in a way I could prove.

In one interview I attended, the 2 young interviewers who appeared in their 20s obviously showed they were lost as to how to commence my interview (I guess my grey hair may have thrown her off since I was coming for a nurse residency program?). After fumbling with the papers on the table, she then asked me, about twice, if I was saying I didn’t have any experience, to which I answered in the affirmative and stated I just graduated nursing school.

Okay, tell me about yourself, was the first question. I did and mentioned I had home health experience. Tell me more about the home health experience. Next, what do you think will be most challenging for you? I stated the fact that I will be working with more patients at the same time compared to home health where I worked with one. But my clinical rotations and practicum gave me some experience which I hope to build on. She now told me that the position is very fast-paced- are you sure you can do it? Sure, I can. That was the end of her questioning. I was so sure I got the job due to the questions asked and my responses. No, I didn’t!

Sure, there is a law against age discrimination.

The Age Discrimination in Employment Act (ADEA) was passed in 1967 and amended in 1986 to prohibit discrimination against individuals 40 years old or older. This includes hiring or retirement process. The Equal Employment Opportunity Commission (EEOC) enforces violations through their attorneys.

23 Years After the Act, Has This Been Achieved?

No.

In Employment

Age discrimination is not just in the hiring process but does affect those already in employment. In a Health and Retirement Study, which followed a nationally representative sample of about 20,000 people from the time they turn 50 through the rest of their lives, 56% of older workers were laid off-laid off or made to leave jobs in a circumstance that appeared involuntary rather than voluntary (Wilkie, 2019). Wilkie, (2019) quoted Patrick Button, assistant professor of economics at Tulane University and a researcher with the National Bureau of Economic Research Disability Research Center who stated that

Quote

Some employers use more sneaky, likely illegal methods to try to encourage older workers to leave, such as job or task reassignment, being [unfairly] negative during performance reviews, not providing workplace accommodations. The goal here is for older workers to quit, which would appear voluntary on the books…

In the Hiring Process

Victoria Lipnic, Acting Chair, U.S. Equal Employment Opportunity Commission cited a 2015 study, the largest field study of age discrimination in hiring was conducted with over 40,000 applications for over 13,000 jobs in 12 cities across 11 states. Evidence of age discrimination was found against both men and women, with older applicants, those aged 64 to 66 years old, who were more frequently denied job interviews than middle-age applicants age 49 to 51. Also, older women who were middle age had more discrimination than older men ( Lipnic, 2018).

It is more difficult to prove discrimination when it is associated with age. A 2017 AARP survey reported that a majority of workers ages 45 and older had witnessed or experienced age discrimination in the workforce but Patricia Barnes, an attorney and author of Overcoming Age Discrimination in Employment (self-published, 2016), explains that "The overwhelming majority of age-discrimination cases today are based on circumstantial evidence"(Wilkie, 2019).

Why Is This a Problem?

Lipnic (2018) stated that the last 25 years has seen the most dramatic changes in the age of the labor force as the number of workers age 55 and older doubled. There is an over 25% projection of the workforce for women age 55 and older by 2024. Also, workers age 65 and older are keeping their jobs or re-entering the workforce in higher numbers.

The Bureau of Labor Statistics (BLS) estimates that the oldest segment of the workforce that would grow the fastest through 2024 are those ages 65 to 74, and 75 and older. This is estimated to grow by 75% by 2050, while a minimal increase of 2% is estimated for those ages 25 to 54 in the same period ( Lipnic, 2018).

Why Are There Few Reported Cases?

I was not motivated to report my own case of what I felt was age discrimination because the burden of proof was on me and I didn’t have hardcore evidence. In a 2009 case, the supreme court ruled that “a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision” (Jack GROSS, Petitioner, v. FBL FINANCIAL SERVICES, INC. ). This places a much higher burden of proof on workers who allege this form of discrimination. As Barnes stated an “overwhelming majority of age-discrimination cases today are based on circumstantial evidence."

I also felt the employers were entitled to conduct their business the way they felt appropriate and if this is how they felt, I wouldn’t want to work in such an organization, anyways. This may explain why most choose not to report.

What Nurses Can Do

Are You a Hiring Manager?

Then be an agent of change in this regard. Hire nurses based on their abilities and knowledge.

Are You in Management?

• Promote an organizational culture where older nurses understand that though they are more vulnerable, there are more advantages to retaining them.
• Reduction in workload: Less physically demanding tasks such as mentoring new nurses or teaching clinical skills, could be assigned to older nurses (Uthaman, Chua, & Yuh Ang, 2016).
• Flexible scheduling would help with health-related reasons, fatigue or the desire to have more time for themselves. Uthaman, Chua, and Yuh Ang (2016) suggest job sharing, where two nurses could perform part-time work normally done by one nurse working full time. Shorter or part-time shifts could also be allowed near retirement or for those who wished to return after retirement.
• Provide professional development opportunities especially in the area of technological advances. This opportunity should not just be for new nurses. It would establish self-worth and confidence in older nurses when they keep learning how to face technological challenges.
• Provide adequate compensation for years of experience, knowledge, and responsibility instead of hiring younger nurses who do not have as much experience for managerial positions just for the purpose of keeping costs low.
• Be supportive and fair by suggesting the introduction of devices to help safe patient handling, adequate lighting, non-slip floor surfaces, and decentralization to reduce walking distances (Uthaman, Chua, & Yuh Ang, 2016). This would show older nurses that they are valued and cared for, and would encourage them to remain with the organization.

As nurses, we can choose to stop age discrimination where we work especially when we are in a position to do so. Remember, with each passing day, we are all growing older. ?

In what way can you contribute to reducing age discrimination at your workplace?

References

Gross v. FBL Financial Services, Inc., 557 US 167 - Supreme Court 2009 Retrieved from https://scholar.Google.com/scholar_case?case=13841743782025775964
Lipnic, V.A.  (2018).

The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA). Retrieved from https://www.eeoc.gov/reports/state-age-discrimination-and-older-workers-us-50-years-after-age-discrimination-employment 
Uthaman, T., Chua, T. L.,& Yuh Ang, S. (2016).

Older nurses: A literature review on challenges, factors in early retirement and workforce retention. Proceedings of Singapore Healthcare,  25 (1), 50-55. doi: 10.1177/2010105815610138
Wilkie, D. (2019).

50 Years After Age Discrimination Became Illegal, It Persists

[Dimitra Loukissa]

This is agreat article to bring about awareness on this important topic. In an effort to save money, hospitals and similar entities prefer to replace "expensive" RNs with most cost effective ones. What they do not take into account is the lack of experience of the less experienced which can translate in probable misses and centinal events in patients. Then, in addition to unfavorable patient outcomes the hospital is faced with litigation from patients/families. Empowering nurses and making them aware of their rights as well as possible legal venues they can consider is another important approach which can have a dual benefit: empowiring older nurses to actively protect their rights, but also sending a strong message to employers that they can be faced with consequences.

[nursel56]

Great article, RNat55! Yes, there's age discrimination in nursing, and very hard to prove in the arena of the job hunt for new graduates, as it would be difficult to isolate that one factor in terms of why you weren't offered a job.

A couple of the points you mention I believe can be traced to certain systemic changes in the healthcare industry.

First, the rise of the corporate for-profit business model seems to devalue experience in both nursing and prior non-nursing job life experience that enhance what an older new grad or older nurse can bring to a potential employer.

The other thing I noticed is hiring decisions being farmed out to HR, for at least the first round of interviews. When you interview with a nurse manager, as they know their unit they may see qualities in the candidate that offset the age factor.

During my job hunt I had an interview somewhat as you described, plus some giggling was involved. A few days later, different place, I had an interview with actual nursing management of a hospital unit, after the Q and A she said, "I think you would be a really good fit". She later told me if it didn't work out I could call her periodically to check if anything suitable came up in the meantime.

Hope everything works out for you!