Older Workers struggle in Nevada  

Age discrimination is harder to prove in wake of 2009 U.S. Supreme Court decision - age employment inequity persists and grows in post-COVID economy

Karen McDermott, MD is 72 years old and continues to bring decades of experience to her patients - photo: Brian Bahouth/the Ally

When one thinks of the term “senior citizen,” one conjures up visions of grey-haired, bespectacled grandparents whiling their days away playing shuffleboard, knitting, or perhaps facing a move to a nursing facility.  Last year, Texas Lt. Governor Dan Patrick reinforced this image when he suggested that older Americans dying from COVID was an acceptable risk to keep businesses open and the economy afloat.

Yet, he had it all wrong.

Many senior citizens work. They’re part of the economy. They’re part of the engine.

In 2019, over 75 million people ages 60 and over were part of the labor force. While the COVID pandemic put older workers at a greater risk, many continued to want and need to work. In the last twenty years, their share of the labor pool has grown at a faster rate than their share of the total population. In fact, older workers accounted for all of the employment growth in the last twenty years.  As a nation, we depend upon senior citizens, not just on what they spend but on what they produce.  

Yet there is persistent bias against hiring and retaining older employees.

According to a recent report from Medicare Advantage, age discrimination in the workplace is rising. While some states show signs of improvement, Nevada is one of the worst for older employees. Not only does Nevada have some of the highest numbers of age discrimination complaints, but also the most rapid increases in these filings. And the COVID pandemic has worsened the situation. Recent testimony on the Nevada Right to Work bill illustrated the fears of older laid-off workers.   

“I only had four more years to go before I could retire. I’m worried that now nobody will hire me at my age for a new job,” unemployed casino worker, Luceanne Taufa stated, in support of SB386. 

Mario Sandoval, a former food server emotionally testified, “I have spent my life working for this company. I shouldn’t have to start my career over when I’m so close to retiring with dignity… I love my job.”

Research confirms their fears. According to a study by the Schwartz Center for Economic Policy Analysis at the New School, workers over the age of 55 faced disproportionate job loss during the pandemic and are being rehired slower than their younger counterparts. When it comes to employment, age matters.

In 1967, amid the civil rights movement, a law was passed to prohibit age discrimination on the job. The ADEA (Age Discrimination Employment Act) prohibits hiring and firing based on age. Nevada and other states have passed legislation to extend the law. Federal and state organizations ensure the law is followed. In Nevada, the NERC (Nevada Equal Rights Commission) along with the EEOC regulate age discrimination claims.

But these cases are difficult to prove. And the proof is in the numbers. Of the nearly 500 cases investigated by the NERC, only a small fraction meet the stringent legal standard. 

“In the last four years, we’ve settled significantly,” says Nevada Equal Rights Commission Administrator Kara Jenkins.

“We investigated 447 cases. Of that, we found probable cause in four; not even 2 percent.”

The culprit is Gross v. FBL, a 2009 Supreme Court case that raised the bar in age discrimination cases. Prior to the Gross ruling, age needed to only be one of the motivating reasons for the discriminatory action. Post Gross, age needs to be the sole motivating factor, i.e., the employee must prove that “but-for” their age, the discriminatory act would not have occurred. The impact has been felt in Nevada. 

“Other cases under Title VII, which is race, age, religion, national origin and sex, and even disability, there could be multiple reasons as to why this person was fired,” Jenkins explains. “The cases investigators handled regarding age have a higher standard. In most cases, there are other factors. There just isn’t enough evidence to show age as the ‘but-for’.” 

In the ten years following the Gross decision, ADEA litigation decreased by 70 percent.

This has not escaped the attention of elected officials. Concerns over inequitable legal protections for older workers prompted the House to enact legislation to reverse the damaging effects of the 2009 Supreme Court case.  Every year following the ruling, Congress has proposed the Protecting Older Workers Discrimination Act (POWDA.)  

In 2018, the bill finally passed the House (with one dissenting Nevada vote), only to languish in the Senate. Reintroduced in March of this year, the bill re-emerged in both houses with bipartisan support. If approved, Nevada employers will likely feel the impact.  

In 2018, 52 million people ages 65 and older accounted for 16 percent of the nation’s total population. By 2030, 19 percent of the population will be senior citizens. In Nevada, it will be 21 percent. And a significant number of these Nevadans will continue to work.   

A 2014 survey by AARP Nevada reported that one third of all respondents stated they or someone they knew experienced age discrimination on the job. Given these figures, it’s no surprise the report also found overwhelming support for the Protecting Older Workers Discrimination Act.  Nearly nine out of ten respondents felt that Congress needed to ensure those over 50 have equal opportunity in the workplace. And this support crossed ideological and party lines.

Even so, POWDA still has not passed.    

Despite reductions in racial, ethnic, gender, and sexual orientation bias, ageism stubbornly persists. In a recent interview with National Public Radio, Tessa Charlesworth, who researches implicit bias, stated, “Implicit age attitudes will not reach neutrality even within the next 150 years.”

The perception of senior citizens as frail and needy overshadows the issue of workplace discrimination. In the media, adults over age 50 are depicted as dependent and disconnected, yet research shows that people 50-plus are fully engaged in their communities. In 2020, the American Psychological Association acknowledged the prevalence of ageism as well; “Negative stereotypes of aging continue to raise serious problems that lead to discrimination and unfair treatment of older adults.” And when other discriminatory categories are considered, women and minorities are especially impacted by bias.

But there are steps employers can take to ensure a diverse workforce. In Nevada, the NERC provides free assistance in the form of training and consultation. “It’s kind of like a common sense, good business practice, that you would want to keep folks that have been with you for twenty years, because they have a lot of institutional history and knowledge of your company. It’s to your benefit to keep them,” said Jenkins.

Meanwhile, pending a legislative remedy, older workers will continue the struggle to prove discrimination. And while Lt. Governor Patrick suggested sacrificing seniors for the good of the economy, in reality, the American economy depends upon the work of older employees. Unfortunately, his sentiment reflects the implicit ageism that prevails in this country despite the growing number of aging adults. Even so, some older works remain optimistic.

In the words of Mario Sandoval, “I love my job. I have good pay, health benefits, I live comfortably. My job helped me raise my four kids. I dream about it.

“Hope can take me a long way.”