Age Harassment in the American Workplace and What the EEOC Can Do About It Remarks of Daniel B. Kohrman, AARP Foundation Litigation to the EEOC Select Task Force on the Study of Harassment in the Workplace

December 7, 2015

AARP
601 E Street, NW
Washington, DC 20049

Commissioners Feldblum and Lipnic, and  Members of the EEOC's Select Task Force on the Study of Harassment in the Workplace, thank you for inviting AARP to discuss the issue of age-based harassment.  On behalf of our more than 37 million members and workers age 40 and older who constitute roughly 55 percent of the labor force, AARP appreciates this chance to share our views at today's panel discussion.  We welcome the opportunity to work further with the Task Force as its work proceeds.

Age-based workplace harassment is a serious problem        

Age discrimination in the workplace persists as a serious and pervasive problem. Approximately two-thirds (64%) of older workers (ages 45-74) say they have seen or experienced age discrimination in the workplace.  At a time when the workforce is aging and more older workers report that they need or want to work past normal retirement age, it is critical that every American worker is treated fairly on the job, regardless of age or disability.  

While age-based harassment doesn't receive the same attention as age discrimination in hiring or layoffs, age harassment is a significant problem. It is also, apparently, a growing problem.  Recent EEOC data reveal a significant increase in charges of age-based workplace harassment.  Such claims hovered around 3,700-3,800 from FY 2010 to FY 2012, but grew significantly - by 10% - over the last two years, reaching 4,157 charges in FY 2014.  Charges of age harassment grew faster in this five-year period than race and sex-based harassment charges, the two largest categories.  EEOC Enforcement & Litigation Statistics, Bases by Issue, FY 2010 - FY 2014, https://www.eeoc.gov/statistics/bases-issue-charges-filed-eeoc-fy-2010-fy-2019. Moreover, it is safe to assume that these charges reflect only a fraction of the actual extent of age-based workplace harassment.

What age harassment looks like

Age harassment generally mirrors other forms of workplace harassment. It usually consists of derogatory, dismissive, or abusive comments that define and reduce a worker to her/his protected characteristic, in this case age.  For instance, in the case of Preuss v. Kolmar Labs., Inc., 970 F. Supp. 2d 171, 186 (S.D..N.Y. 2013), supervisor Luckey called plaintiff Preuss "old man" every day for a year, and called plaintiff Cafiero the same "one to three times a month when he would threaten to fire him." In Hibberd v. Chief Legal Counsel, No. 3-09-0366, 2011 Ill. App. Unpub. LEXIS 34 (Ill. App. 3d Dist. Feb.15, 2011), a woman was subjected to ageist remarks such as "you can't teach an old dog new tricks;" "you are blind as a bat;" and "just lie down and go to sleep." The court explained: "the … attempt to excuse the "old-dogs" comment by calling it a reference to experience … is so contrary to human experience as to constitute an abuse of discretion"; and further, "[i]ndividually, calling someone 'blind as a bat' arguably might not be a reference to that person's age. However, that same comment, when judged next to a comment that younger employees are needed, even if not for their visual acuity, the comments 'you are blind as a bat' and "just lie down and go to sleep" are revealed to be references to age."  Id. at *20-21. 

As with other forms of harassment, the derogatory treatment is typically based on negative stereotypes and assumptions about older workers. Research by AARP demonstrates that older workers bring tremendous value to the workplace and that they tend to be more engaged and productive, Aon Hewitt for AARP, A Business Case for Workers Age 50+: A Look at the Value of Experience  (2015). However, according to a summary of social science research in a just-released study finding rampant age discrimination in hiring, ageist stereotypes persist.  See Neumark, D., Burn, I., Button, P., "Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from A Field Experiment," Working Paper 21669, National Bureau of Economic Research, October 2015.  Neumark, et al., describe "substantial evidence of negative stereotypes regarding older workers," and worse, "common and widespread acceptance of ageist characterizations of older workers, reflecting many of these stereotypes."  Id. at 3-4.  Moreover, age stereotypes and bias are often gendered; Neumark et al. found that age discrimination in hiring is even more of a problem for women.  Id.  See also, e.g., 61 Journal of Social Issues, No. 2 (Society for the Psychological Study of Social Issues 2005) (containing 12 articles on aging and age bias); see esp. id., at 228-29, Martens, A., Goldenberg, J.L., & Greenberg, J., A Terror Management Perspective on Ageism, ("the more . . . we derive self-esteem from attributes which [we perceive as] diminish[ing] with age, the more likely it is that elderly people will be potent reminders of the transitory nature of our bases of self-worth"). 

The Supreme Court has repeatedly recognized "inaccurate and stigmatizing stereotypes" as fundamental to age bias.  Hazen Paper v. Biggins, 507 U.S. 604, 610 (1993); see EEOC v. Wyoming, 460 U.S. 226, 231 (1983) (citing "stereotypes unsupported by objective fact" and "arbitrary age lines … [ignoring] that, as an overall matter, the performance of older workers was at least as good as that of younger workers").

Barriers to redress of age harassment

In addition to the same barriers that often prevent redress for harassment on other bases (e.g., reluctance to report and file a charge, difficulty in proving, etc.), older workers face particular, additional barriers in challenging age harassment. First, courts, and often our culture, do not treat ageism as seriously as other forms of bias. As a result, age harassment cases often founder because they don't appear sufficiently severe, even if pervasive, to meet the hostile environment standard. The problem is not with the standard, the problem is that age harassment is often viewed as less bigoted, and thus not meeting the standard.  More often than not, offensive age-related comments are deemed to be "stray remarks" or merely harmless teasing. See, e.g., Smith v. Kmart Corp., 1996 U.S. Dist. Lexis 20530, at *35 (E.D. Wash. Dec. 18, 1996) (age-based derogatory comments did not cause a hostile and abusive environment where co-employees viewed comments "as light hearted teasing and bantering").

Thus some courts have insisted on additional evidence of animus.  For instance, in Moody v. U.S. Secy. of the Army, 72 Fed. Appx. 235 (5th Cir. 2003), the court affirmed the dismissal of a ADEA hostile environment workplace harassment claim brought by Pearl Moody, a 62-year-old Army employee who claimed her supervisor had "harassed her for several years based on her age, and refused to give her a promotion or reevaluate her job and upgrade her pay scale to reflect the work she was actually doing."  72 Fed. Appx. at 237.  Although Moody alleged "a long-running pattern of harassment" documented in a "detailed log" of her supervisor's misconduct, the court said "only four instances [of such] behavior evidence[d] discriminatory animus."  Id. at 238-39 ("Granny have you not got anything to do?"; "See that old woman and she will take care of you", referring to Moody; "old woman, when are you going to retire and go home so someone younger can have a job?"; and  "Granny, when are you going to retire and let someone younger have a job?"). 

What some courts have not understood is that age stereotypes can give rise to devastating age-based harassment, even if age bias generally lacks "the sort of animus motivating some other forms of discrimination."  Wyoming, id. at 231.  See, e.g., Wiener, R., Gervais, S., Brnjic, E., and Nuss, G., "Dehumanization of Older People:  The Evaluation of Hostile Work Environments," 20 Psych. Pub. Pol. And L. 384 (November 2014).  Evidence of bigotry and animus is helpful to have, but workers shouldn't need that to prove their cases. Supervisors and coworkers can still pointedly harass an older worker based on age and make her/his life miserable to the point of changing the terms and conditions of employment or even pushing them out of the workplace, without additional evidence of animus being needed.

The second barrier older workers face in bringing causes of action for harassment is the statute itself. The ADEA cross-references the remedial framework of the Fair Labor Standards Act, only permitting damages for unpaid wages or other forms of lost compensation (or front pay as an alternative to reinstatement). Liquidated damages equal to double backpay can be awarded for willful violations, Platt, L. Steven & Ventrell-Monsees, C., Age Discrimination Litigation, vol. 1, § 6:70.20 (2012 ed.), but unlike Title VII, the ADEA does not provide for compensatory or punitive damages. In other words, unless an older worker is actually or constructively discharged - in which case the claim is likely to be brought as a discharge case - there is no monetary remedy for harassment alone.

The case law makes it abundantly clear that remedies are severely limited. For instance, in Collazo v. Nicholson, 535 F.3d 41 (1st Cir. 2008), the court of appeals affirmed a summary judgment for the U.S. Secretary of Veteran's Affairs rejecting the plaintiff's ADEA workplace harassment claim on the grounds that a workplace harassment claim for damages only is not cognizable under the ADEA. The Collazo court explained:

The district court concluded that Collazo failed to establish a prima facie case of discrimination under the ADEA because the incidents of harassment he described were, as a matter of law, "not sufficiently severe or pervasive to support a hostile work environment claim under the ADEA." However, there is a more basic problem with Collazo's claim. Collazo has "failed to state a claim upon which relief may be granted" because the remedy he seeks, compensatory damages for the alleged mental anguish, pain, suffering, humiliation, and loss of enjoyment he suffered as a result of being required to work in a hostile work environment based on his age, is not available to him under the statute. Fed. R. Civ. P. 12(b)(6) [emphasis added, footnote omitted].  Although we have recognized hostile work environment claims under the ADEA, see Rivera-Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001), it is well-established that the statute does not allow compensatory damages for pain and suffering, Vazquez v. E. Air Lines, Inc., 579 F.2d 107, 109 (1st Cir. 1978); see also Comm'r of Internal Revenue v. Schleier, 515 U.S. 323, 326, 115 S. Ct. 2159, 132 L. Ed. 2d 294 (1995) (noting unanimity among the circuits on this principle).

Similarly, in Barton v. Zimmer, Inc., NO.: 1:06-CV-208-TS, 2009 U.S. Dist. LEXIS 60555, *82 n.13 (N.D. Ind. July 16, 2009), aff'd, 662 F.3d 448 (7th Cir. 2011), the court struggled to discern a remedy available to the plaintiff, who continued to receive his salary while allegedly forced out on medical leave, and thus suffered no "pecuniary" harm.  The court also dismissed equitable relief, such as reinstatement, because the plaintiff "ha[d] retired . . . and [wa]s collecting social security disability benefits."  The court concluded "that the uncertainty surrounding damages may be problematic to any claim for recovery under a hostile environment theory because money damages under the ADEA are limited to backpay and liquidated damages (in an amount equal to pecuniary [i.e., backpay] losses suffered) for willful conduct." Id.

The EEOC's role

The ADEA's limited remedies pose a fundamental impediment for private litigants resisting age-based workplace harassment.  Unless and until Congress amends the ADEA to provide compensatory (and/or punitive) damages as part of the remedies available to ADEA plaintiffs, there are only a few options available to age-based harassment victims: sue under a state (or local) law that provides damages for age discrimination; file an ADEA harassment claim combined with another form of ADEA claim; or hope the EEOC files suit (or seeks relief in mediation or conciliation) on their behalf.

While groups such as AARP Foundation Litigation may engage in some cases as warranted, see e.g., Taaffe v. Drake, No. 2:15-cv-02870-JLG-TPK (S.D. Ohio) (ADEA ex parte Young constructive discharge case against state university officials in their official capacity), capacity for such action generally is limited. 

As is the case with ADEA claims against state employers, at least since Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), and consistent with the EEOC's strategic enforcement plan prioritizing cases in which individuals are prevented from exercising their rights under employment discrimination statutes, the EEOC's responsibility to uphold the rights of older workers is heightened whenever private enforcement is improbable.  AARP appreciates the EEOC's efforts of late to address instances of age-based harassment.  See, e.g., EEOC v. Wal-Mart Stores of Texas, LLC, No. 3:14-cv-00908-M (N.D. Tex.) ("Wal-Mart to Pay $150,000 to Settle Age and Disability Discrimination Suit") (EEOC Press Release Feb. 19. 2015); EEOC v. DuneCraft, Inc., No. 1:14-cv-02011 (N.D. Ohio) ("EEOC Sues Dunecraft for Age-Based Harassment, Discrimination and Retaliation") ($300,000 settlement of harassment, discrimination and retaliation claims) (EEOC Press Release Sept. 10, 2014); EEOC v. PJP Health, Inc., No. 2:13-4092 (E.D.N.Y.) ("PJP Health to pay $300,000 to Settle EEOC Age [Harassment] Discrimination and Retaliation Lawsuit") (EEOC Press Release May 1, 2014).  That said, we could find only a few more age-based harassment cases discussed in agency news releases going back to 2009.  We strongly encourage the Commission to continue and to significantly ramp up its recent efforts. We also urge the EEOC to ensure that its staff is trained to identify possible cases of age-based harassment, and not simply to view harassment as evidence of a discriminatory motive underlying some other employment practice.

Thank you for the opportunity to participate in today's panel discussion, and AARP looks forward to working with you to ensure that age harassment is addressed for the serious civil rights violation that it is.