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Guest Post: From “Senior” to “Sully” Moment

This guest post is by Jeanette Leardi, a Portland, Oregon, writer, editor, and community educator who is changing perceptions about the aging process and helping people appreciate elders’ inherent dignity, wisdom, and unique value as mentors and catalysts for social change. You can read more of her blog posts at ChangingAging, where this post first appeared, and reach her through her website.

As a social gerontologist, community educator, and writer, I am passionate about explaining how language affects –– in good or bad ways –– our perceptions of aging, and vice versa. Three particular phrases raise my hackles.

“Successful aging” is often used to depict the process of getting older as solely an individual’s responsibility rather than to also acknowledge powerful socioeconomic factors that affect a person’s ability to survive and thrive throughout life.

“Silver tsunami” is a phrase that mischaracterizes the arrival into older adulthood of America’s Baby Boom generation as a sudden and catastrophic force that will wipe out national productivity as well as entitlement program funds, without taking into account the potentially vast contributions elders can and do make in our society.

These two terms are regularly employed by the media when covering aging issues. But we hear the third term –– “senior moment” –– all the time, used by practically everyone from youth to the oldest old among us. The phrase is so pervasive that it has taken on a kind of scientific validity, as if the act of forgetting familiar information is limited to the behavior of older people. It’s not.

Here’s the reality about senior moments: They happen to all adults decades before they reach elderhood. According to University of Virginia psychology professor Dr. Timothy A. Salthouse, “some aspects of age-related cognitive decline begin in healthy educated adults when they are in their 20s and 30s.”Within five years after a cognitive peak around age 22, we begin to experience a gradual decline in the speed at which our brains work, as well as our ability to make quick comparisons, to think abstractly, to remember unrelated pieces of information, and to perceive patterns and relationships. And by our late 30s, problems with our memory become more apparent to us.

In short, senior moments belong to us all. Or as Ashton Applewhite eloquently states in her ground-breaking book This Chair Rocks: A Manifesto Against Ageism, “I used to think that those [‘senior moments’] quips were self-deprecatingly cute, until it dawned on me that when I lost the car keys in high school, I didn’t call it a ‘junior moment.’”

So instead of unrealistically attributing senior moments only to the elder experience, I’d like to offer a refreshing (and more accurate) meme for older brain activity: the “Sully moment.”

From “Senior” to “Sully” Moment - ChangingAging
Chesley “Sully” Sullenberger

Enter famed airline pilot Chesley “Sully” Sullenberger, hero of the “Miracle on the Hudson,” who made a successful 2009 emergency landing in New York’s Hudson River of a U.S. Airways plane carrying 155 passengers. The inspiring story of his accomplishment can actually be explained by a brain phenomenon known as bihemispheric processing.

This skill fully develops around age 50, when the corpus callosum –– a bridge of tissue connecting our left and right hemispheres –– reaches its maximum maturity of approximately 200 million to 250 million nerve fibers. At this point, our brain reaches a state that geriatric psychiatrist Gene Cohen has described as shifting from two-wheel drive to “all-wheel drive.” Evidence of this shift is a greater ability to approach problem-solving from many different perspectives and to detect more subtle differences in circumstances and viewpoints.

Just catch Sully’s 2009 60 Minutes interview with Katie Couric, and you’ll hear an account of all-wheel drive in action as he ticked off in succession the various factors he had to consider and computations he had to make within seconds. “I was sure I could do it,” he said. “I think in many ways, as it turned out, my entire life up to that moment had been a preparation to handle that particular moment.”

As he also told Couric, “One way of looking at this might be that for 42 years, I’ve been making small, regular deposits in this bank of experience, education and training. And on January 15, the balance was sufficient so that I could make a very large withdrawal.”

All of this is not to say that younger adults can’t process information bihemispherically. Of course they can. It’s just that they get better at it as they get older. Like much of life, we experience many things as tradeoffs. Sure, we may have more tip-of-the-tongue brain stutters, and our reaction times may get slower. On the other hand, as Salthouse has noted, our vocabulary increases and we accumulate and retain more general knowledge at least until we reach age 60. And older adults with healthy brains continue to integrate that knowledge as they apply their skills throughout their lives. Overall, when you think about it, it’s not a bad deal.

I don’t know about you, but I’ll happily trade a “senior moment” for a “Sully moment” anytime.

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Women are ready to join forces!

As a media partner of the Women’s Forum for the Economy and Society, where I spoke in Paris last week, the New York Times commissioned a piece on how women could respond to ageism. “Working to Disarm Women’s Anti-Aging Demon” came out today, in the lean international edition as well. To my delight, they paired it with this photo of  the actress Frances McDormand (with son Pedro and husband Joel Coen), who credits Pedro for one of her wrinkles and calls her face a map that carries her history.

The piece makes some very big asks, and I was braced for a slew of comments along the line of “Why should getting old mean looking bad?” Instead the response has been massive, heartfelt, and enthused:  “This should be our manifesto.” “Let’s go!” “I’m in!” I hope readers will follow my last suggestion to “come together at all ages and talk about this stuff.” Let’s use Who Me, Ageist?  How to Start a Consciousness-Raising Group as a starting point and collaborate on a version for women and allies.

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The beauty industry is shifting from anti-aging to anti-anti-aging. So what?

The New York Times magazine opens every Sunday with an essay about what a given word or phrase reveals about the moment. This week’s was “anti-aging.” The line at the top of the print version read, “After years obsessing over ‘anti-aging,’ our culture finds itself at an impasse. We don’t want to look older—but we don’t want to feel as if we fear it, either.” The catalyst was the announcement in Allure magazine’s September issue that the word has been banned from its pages. Editor-in-chief Michelle Lee commended instead “the long-awaited, utterly necessary celebration of growing into your own skin—wrinkles and all.”  Huzzah!

But not so fast. As writer Amanda Hess points out in the Times, Allure is still promoting products that promise to make women look younger. The next sentence reads, “No one is suggesting giving up retinol”—God forbid! (It links to an article that begins, “It’s no secret that retinol ticks practically every box in your anti-aging wishlist.”) Titled “The Ever-Changing Business of Anti-Aging,” Hess’s piece is a sharp critique of the re-branding of “anti-aging”—it’s just another opportunity to sell us the same old stuff. Campaigns have changed over time, from cautionary tales to aggressive pitches grounded in “science” to appeals to the easy and “natural”—from shame to combat to self-care.

Notably, attitudes, too, have shifted. “As the business of fighting aging has consumed the culture, it has produced a secondary aversion, not just to the signs of aging but to the signs that we’re trying to stop the signs of aging,” Hess observes. In other words, we’re moving from anti-aging to anti-anti-aging. Can pro-aging be far behind? Don’t hold your breath. We may nod and agree that it’s fine to embrace our wrinkles, she concludes, “while quietly understanding that none of us, individually, want to be the one who actually looks old.”

I do think a more profound shift in the zeitgeist is underway, however.  As Hess observes, no matter how glossy the images, flawless the celebrities, and clever the jargon, they’re an ever-tougher sell. “They must paper over large and knotty things—our discomfort over our own mortality, our deep-rooted habit of valuing women largely in terms of their attractiveness, our growing sentiment that both ageism and gender roles ought to be things of the past—with a cheery promise that a little face cream will help.”

Appearance matters. Adornment pleases. We each have to age in our own way on whatever terms work for us. As one audience member wrote on her “Questions for the Speaker” form at a gig in New Hampshire last August, “I am fine with using anti-aging products. Whatever makes you feel and look good, do it.”

But society’s obsession with the way women look is less about beauty than about obedience to a punishing external standard—and about power. When women compete to “stay young,” we collude in our own disempowerment. When we rank other women by age, we reinforce ageism, sexism, lookism, and patriarchy. In our guts, we know this to be a bad bargain. It sets us up to fail. It pits us against each other. Because different forms of discrimination compound and reinforce each other, it’s why the poorest of the poor, around the world, are old women of color. That’s intersectionality, a term coined by  black feminist Kimberlé Crenshaw that millennials have grown up with, along with the idea that diversity is a good thing and is here to stay. In 1970, to believe that women could run Fortune 500 corporations as well as men was a big ask. Fifty years later gender is a basic criterion for diversity, along with race and sexual orientation. Age isn’t usually on the list—yet. It’s the last socially acceptable prejudice. But when I propose including it, no one says, “That’s a dumb idea,” or, “Whoa, let me get back to you on that one.”

We have a long way to go on all those fronts, racism in particular.  But if the goal is a society where access to opportunity is not determined by what you look like, gray hair and wrinkles count. Hitching age to the diversity sled makes sense, personally and politically. The ground has been plowed.

 

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Breaking the Reframe on Aging

This guest post is by Elizabeth White, the best-selling author of Fifty-Five, Unemployed, and Faking Normal and an aging solutions advocate for older adults facing uncertain work and financial insecurity. This essay first appeared in Next Avenue.

In my mid-30s, I briefly dated a psychologist. I don’t remember much about him except that his preferred patient was a YAVIS: Young, Attractive, Verbal, Intelligent and Successful. The term was new to me. YAVIS problems, he told me, were more interesting. YAVIS patients had agency and choice and the resources to create a better life for themselves. It’s not that he didn’t feel compassion for people of modest means facing huge life challenges, he just didn’t want them in his practice.

Well, it seems even as YAVISes age, they’re still preferred (even if they’re no longer Young). In their 50s and 60s now, they’re the cool boomers, the media darlings, the ones marketers love to focus on. Too often, when we think of reframing aging we think of them — still high school skinny, free from joint pain, working 70-hour weeks in cool encore careers. Their lives have come to define what aging well means. And the underlying message is that aging well means not looking different, feeling different or acting different than we did in our early 40s.

What’s the Reframe for the Rest of Us?

But are we really reframing aging when so much of the focus is on the traits of fortysomething adults at the top of the food chain with the resources and means to take care of themselves? What’s the reframe for the approximately 40 million boomers trying to scrape together the finances to survive the next 25 years?

The positive aging movement invites us “to come alive, to live our best possible lives,” too often with strategies and choices designed for 60-year-old YAVIS types with money. I don’t begrudge the affluents their options, but where are the affordable choices for the rest of us? Too many positive aging advocates have yet to embrace affordability and access as core principles. Little is written or said about how to help older adults in financial jeopardy and with poor job prospects “live their best possible lives.”

Nearly one third (29 percent) of Americans 55 and older have no retirement savings. Even among those of us over 55 who have managed to save, the median value of our retirement accounts is just $104,000. With life expectancy now north of 80, that money won’t last us very long.

Older Americans at Risk

The truth is we’re already seeing growing numbers of older adults living under dire circumstances. At risk are not just older workers who’ve lost jobs in factories and offices due to offshoring and automation, degree holders who’ve been unexpectedly RIF’ed, outsourced and downsized are also falling on hard times.

Yet, somehow being over 50 and financially insecure has gotten a bad rap in the reframing aging movement, despite the millions of older Americans at risk of experiencing it. We’re told that if we talk about our financial challenges, we’ll turn off marketers, employers and others. We’re encouraged to focus instead always on what’s good about aging — what’s upbeat and promising.

But how transformative is the reframe on aging when millions of older Americans facing real financial challenges and a rough ride ahead are excluded from the conversation?

Where Are the Good Ideas?

If the economics of aging means that millions of us are going to have to live with less, why aren’t whole conferences dedicated to helping us figure out how? What are the good ideas we need to know about? What can we learn from promising initiatives already underway in this country and globally?

In the new normal of financial insecurity, lots of us may well end up living in the equivalent of adult dormitories. But why do they have to be soulless slabs of concrete? More of us could embrace the forced downsizing if our much-smaller quarters were well designed, efficient, sustainable and affordable, airy and bright, looked out onto a small courtyard and had the basic services and amenities we need as we age.

What the Reframing Aging Movement Should Do

The reframing aging movement must demand a decent quality of life for the millions of older adults who were good workers, neighbors, taxpayers and citizens and came up short through no fault of their own.

Right now, a lot of us look at the retirement income crisis mainly through the lens of doom and gloom. But what if we flipped the script and looked at it as an opportunity, as a path to a more sustainable way of living and a way to prepare younger generations for longer and better lives?

Instead of focusing on what a burden all of us “old” people are going to be, we should be calling on entrepreneurs, product designers, brand managers and marketers to figure out how to serve a 50+ demographic accustomed to living well, but now on a budget. What new products, services and business models will we need to live richly textured and meaningful lies on fixed or modest incomes?

Talking to Long-Term Unemployed Older Adults

Recently, I had the opportunity to speak to two groups of long-term, unemployed older adults about my book Fifty-five, Unemployed, and Faking Normal. One was in Martin, a rural community in northwest Tennessee; the other was in Cambridge, Mass. at a venue on the MIT campus. In Martin, I met participants in the federal job-training program for older adults, Senior Service Community Employment Program (SCSEP), many struggling to pick up the pieces after losing good factory jobs in their mid- to late-50s. At the Institute for Career Transitions event in Cambridge, I met white-collar professionals in their 40s and 50s, former high earners who were downsized and are facing a “we don’t want you job market.”

What struck me listening to both groups was how similar the stories were of loss and frustration, of doing everything right only to land here. In the end, it did not matter whether you were from Martin or Cambridge, whether you had to give up catfish or salmon, the pain was the same.

The Promise of the Reframing Aging Movement

The real promise of the reframing aging movement is to give older adults affordable options for creating a meaningful life.

It is to help all of us figure out how to adapt and thrive in a future that is uncertain and increasingly impacted by limited resources and other challenges, known and unknown

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Want to help end ageism?

Since my TED talk went up I’ve been inundated with letters from all kinds of people: olders and youngers, in the US and around the world, frustrated and exhilarated, offering solidarity and support. My current favorite arrived yesterday from a gerontologist who wrote, “I’ve been barking up this tree all my life . . . and so honor your revolution. I’m here with you, sister.” It made my day. Thanks to each of you.

Almost everyone is asking how to join the movement and help it grow.  Here’s a whole menu of options. Pick one or two that fit. Mix and match. Make them your own.

  • All change starts between our ears: how do you feel about your own aging? What messages have you absorbed over the years? Whose interests do they serve? How do you think and talk about older people, and getting older? Are any of your close friends much older or younger? Warning: plenty of No shit/Oh shit moments ahead—confronting unconscious bias is uncomfortable. It’s also liberating. Once you start seeing ageism in the culture you see it everywhere, and that genie never goes back in the bottle.
  • Start a consciousness-raising groupthis powerful tool catalyzed the women’s movement. When women came together to share their “personal” problems, they realized that they were up against political problems that required collective action. Download my free guide, Who Me, Ageist? How to Start a Consciousness-raising Group here.
  • Learn about age and age bias. My book, This Chair Rocks: A Manifesto Against Ageism, contains every smart idea I’ve had or come across. It’s not free but it’s not expensive, and it has over 100 5-star reviews on Amazon. The last chapter, “Occupy Age,” is packed with practical suggestions for thinking and acting in ways that will bring us closer to an all-age-friendly society. There’s lots more recommended reading at the bottom of my Resources page.
  • Find your tribe—in the world and on social media. Start or join a group that’s dedicated to age equality. It doesn’t matter whether you read together, hike together, party together, or all of the above. Consider starting a local chapter of the Radical Age Movement, or a Gray Panthers chapter. Movements need actions: look for ways to show up that will make a difference, whether through writing and speaking, or by showing up in brave and imaginative ways, like the nun who busted into a nuclear-weapons site to expose its vulnerability. Keep in mind that when we come together at all ages against any form of injustice, we dismantle ageism in the process. It’s all one struggle.
  • Check out these anti-ageism resources. Create your own. Share them. One of my goals is to establish a clearinghouse of free ageism-related resources—workshops, videos, animations, handouts, exercises, curricula, etc. For now there’s my Resources page. If you know about other good tools, or develop your own, please pass them along.
  • Share my TED talk widely, with your friends, your dentist, your downstairs neighbor . . . you get the idea. It’s an urgent, 11-minute wake-up call, and we’ve got a world to change. 

Let’s do it — let’s make it happen!

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My TED talk is up!

Eleven minutes, which ended, amazingly, with a standing ovation that provoked a unscripted, arms-in-the-air appeal: “Let’s do it!” That means all of us, not just the TEDsters in that audience, but everyone who’s ready to play a part in ending ageism. Watch it. Share it. Widely: with your neighbors, your family, your reading group, your dog-walker, your friends, you get the idea. The sooner the better—the more traction we get early on, the better the odds that the message will get heard around the world. Let’s make a million views and get this party started. 

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Hope I Get Old Before I Die

Who remembers the Who song “Hope I Die Before I Get Old?” Brian Bergstein does, and came up with that witty title for the piece he commissioned for Neo.life, a new publication aimed at “making sense of the neobiological revolution”: how emerging technologies like mapping the brain, gene editing, and decoding the microbiome are changing medicine, society, and maybe even what it means to be human. Life extension is a big piece of this new landscape, and it’s typically framed in anti-aging terms. Here’s my take on why longevity science should embrace aging instead.

An excerpt: “Perhaps, not too long from now, we’ll be able to make the body of an octogenarian function as well as of that of a 30-year-old. That’ll be fantastic, especially if the advances become accessible to all. But 85 won’t be the new 30. It’ll be the new 85. And even the fittest octogenarians will be second-class citizens until we challenge the last socially sanctioned prejudice. Making the most of the new longevity means ending ageism.”

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We’re all in this together—olders and youngers alike.

Today I joined the ten thousand baby boomers who turn 65 every day. Unlike far too many of them, I’m happy about it, partly because now I qualify for Medicare so I can quit my day job and become a full-time activist. That ought to be cause for some kind of celebration, but I’m too disgusted by the proposed evisceration of the Affordable Care Act.

Much of the media coverage focuses on the fact that people on Medicaid would be the largest group to lose health insurance coverage. That group is disproportionately made up of olders with lower incomes and people with disabilities, who receive nearly two thirds of Medicaid spending. Medicaid pays for most of the 1.4 million people in nursing homes, many of whom entered old age solidly middle class, and ended up on Medicaid after exhausting their savings. That probably won’t happen to me, but only Medicaid covers services like home care that allow many olders to remain in their communities. And I’ll definitely need Medicare, which is also under threat.

This evil bill would really hit in ten years, by which time the rest of the baby boom will have rounded 65—and when the old vs. young rhetoric would really heat up. We can’t let that happen. Make no mistake: this legislation wouldn’t just harm the old, the poor, and the disabled. It is an attack on everyone anyone who might get old, might fall ill, might start a family—or who loves someone who might. It would shred the social fabric that supports all but those who can afford their own private safety nets. We’re all in this together.

 

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If aging is so awful, how come no one wants to be younger?

You hear people say, “I wish I were young again,” all the time. Yet I’ve never met anyone who would actually choose to move their game piece back on the board unless they could transport their present-day consciousness along with it. No one actually wants to be younger, despite a lifetime of being bombarded by messages that old = awful and it’s all going to suck. Even the most frightened and unenlightened know otherwise: that despite the inevitable loss of cartilage and comrades, aging is different—and way better—than the way it’s portrayed in the culture. That is powerful fodder for a movement to end ageism.

Imagine less fear: have the things you dreaded come to pass? Imagine more awareness: understanding that appeals to look or act “younger” are bigotry. Imagine learning these things earlier in life, so the generations that follow are liberated from needless dread. Imagine coming together at all ages to make it happen.

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Guest post: “There is no justification for hiring based on age stereotypes.”

This post consists of career civil rights lawyer Laurie McCann’s written testimony before the U.S. Equal Employment Opportunity Commission on May 16, 2016.  McCann is Senior Attorney with AARP Foundation Litigation, which she represents on a broad range of age discrimination and other employment issues, and a noted speaker on issues related to an older work force. The footnotes are useful too.

Chair Yang, Commissioners Barker, Feldblum, Lipnic and Burrows, thank you for inviting AARP to discuss the issue of diversity in the technology industry and in particular the problem of age discrimination. 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 Commission meeting. We welcome the opportunity to work further with the Commission as its work proceeds.

Age Discrimination is Pervasive in the Tech Industry

As we approach the 50th anniversary of the enactment of the Age Discrimination in Employment Act (ADEA), ageism, unfortunately, remains pervasive in the American labor force. In a 2013 AARP study, nearly two-thirds of older workers reported witnessing or experiencing age discrimination in the workplace.1 Of those, 92 percent said such discrimination was very or somewhat common.2 It would appear that age discrimination is very prevalent in the technology sector of the economy. According to a recent Fortune magazine article,3 the median age of employees at Twitter is just 28, and at Facebook and Google, the median age is 29. When compared to a median age of 42 for the workforce overall, the message is stark – older workers are persona non grata in technology.

While those statistics are stunning, the most amazing fact is that the industry is so unapologetic about it. Rather than try to hide or explain away the lack of age diversity in the sector, they boast about it. For example, in 2011, Vinod Khosia, co-founder of Sun Microsystems declared, “. . .people under 35 are the people who make change happen; people over the age of 45 basically die in terms of new ideas.”4 In his New Republic article about ageism in the tech sector, Scheiber quoted Michael Moritz, a venture capitalist with Sequoia Capital, who unabashedly stated that he was “an incredibly enthusiastic fan of very talented twentysomethings” because they “have great passion” and “don’t have distractions like . . . children.”5 Scheiber also reported that the website of ServiceNow, a large Santa Clara-based IT services company declared prominently on its website’s careers page that “We Want People Who Have Their Best Work Ahead of Them, Not Behind Them.” And, perhaps the most cited and the most telling comment came from Facebook founder Mark Zuckerberg in 2007: “Young people are just smarter.”6

As Bill Maher recently commented, “Ageism is the last acceptable prejudice in America.”7 If these remarks are any indication, nowhere is that more true than in the technology industry.

The rampant age discrimination in the technology sector is perhaps most evident in companies’ hiring policies and practices, which are designed to attract and hire younger employees. Job postings declaring a preference for new or recent graduates are common and some companies have actually specified which graduating class they are seeking.8 For example, in 2013, Facebook settled a case with the California Fair Employment and Housing Department concerning a job listing for an attorney position that noted, “Class of 2007 or 2008 preferred.”9 More recently, many employers have started to require job candidates to be “digital natives.” A digital native is an individual who grew up using technology from an early age whereas a “digital immigrant” refers to someone who adopted technology later in life. This distinction is clearly age-based and can be used to screen out older applicants.10 To date, however, the practice has not been challenged in court.

Many online applications also can screen out older applicants. Some require applicants to include dates of birth or graduation dates in fields that cannot be bypassed. In other words, the applicant cannot submit the application with answering the questions. These practices deter older individuals from applying as many will wonder why they should bother trying when their age will be obvious to the employer. Some companies even go so far as to require potential employees to be affiliated with a college or university in order to submit an application.11 These practices prevent older individuals from applying or at the very least deter them from applying. They also color hiring managers’ perceptions of candidates and cause employers to select from an unrepresentative pool of applicants with disproportionately fewer older applicants.

There is no justification for hiring based on age stereotypes. Hiring should be inclusive and should focus on the job skills needed for the specific position. Employers need to focus on skill sets and qualifications, not solely on demographics. While employers should be able to employ candidates that they consider to be a good fit, they must not let industry and personal stereotypes influence their hiring decisions and recruiting strategies. They should not assume older workers won’t be able to “fit in” with younger colleagues. They should not presume that older workers learned their skills years ago and have been simply coasting ever since. Older engineers and programmers are often up on the latest technology, and what they don’t know they can quickly learn. They should not presume older workers are not creative or innovative; in fact, studies show that workers can be equally or more innovative as they get older.12

If an older employee is able to find employment in the industry, they are still not home free. Instead, discrimination can take other forms including layoffs, and fewer opportunities for advancement and professional development, which then increases older workers’ vulnerability to layoffs. In 2004, Brian Reid, then 52-years-old, alleged that he lost his job at Google because of his age. He was called a poor cultural fit, an “old guy” and a “fuddy duddy with ideas too old to matter.” The case was ultimately resolved out of court after the California Supreme Court refused to consider these comments “stray remarks” and instead held that the comments, if actually made, were evidence of discrimination. AARP filed an amicus curiae brief in this case. Google was sued again recently for age discrimination in the U.S. District Court for the Northern District of Illinois.13 Apparently, there is still a problem. One tech industry survivor, Dan Lyons, has recently recounted his experiences as an older employee working for the software company, HubSpot. 14 Lyons was 52-years-old and the average HubSpot employee was 26. But, the most telling fact was that this age imbalance was intentional. In an interview with the New York Times, HubSpot’s CEO and co-founder, Brian Halligan announced that he was “trying to build a culture [at HubSpot] specifically to attract and retain Gen Y’ers,” because, “in the tech world, gray hair and experience are really overrated.”15

Barriers to Redress Age Discrimination in Hiring

Given the ADEA’s clear directive that it is unlawful to fail to hire an individual because of their age, why is age discrimination in hiring so prevalent? There are many obstacles to challenging hiring discrimination, and applicants, especially those among the long-term unemployed, are more focused on their primary concern – finding employment.

Hiring discrimination is notoriously difficult to challenge because it is difficult to detect. Jobseekers lack sufficient information about a company’s hiring processes and the relative qualifications of their competition to confidently suspect a potential claim. They may have a “gut feeling” or “hunch” that their age is preventing them from finding employment but that is not enough to establish discrimination, and filing a complaint takes time and energy away from the primary task at hand: finding a job.

Even easily detected forms of bias, such as that found in job postings that specify age-related requirements, often deter older job-seekers from applying, but go unchallenged. Only a miniscule number of charges – only 15416 of 20,14417 age discrimination charges in fiscal year 2015 – alleged unlawful advertising. Current regulations governing employment advertisements and pre-employment inquiries18 are weak, and so do little to deter improper employer behavior and protect the rights of older workers.

Another barrier to addressing hiring discrimination is that although the disparate impact theory is often the best – if not the only – means of challenging such discrimination, employers are mounting an offensive to convince the courts that job applicants may not bring disparate impact claims under section 4(a)(2), 29 U.S.C. 623 (a)(2) of the ADEA. There are already two decisions supporting this position – Kleber v. CareFusion, Corp., 2015 U.S. Dist. LEXIS 157645 (Nov. 23, 2015, N.D. Ill) and Villarreal v. R.J. Reynolds, 2013 U.S. Dist. LEXIS 30018 (Mar. 6, 2013, N.D. Ga) – although the Villarreal case is under en banc review in the U.S. Court of Appeals for the Eleventh Circuit. Both AARP and the EEOC have supported the Villarreal plaintiffs with amicus briefs. Clarity that applicants may bring disparate impact claims under section 4(a)(2) will be crucial in combatting some of the most pernicious hiring practices such as maximum hiring ages and exclusively on campus recruiting.

Companies – even Tech Companies – Benefit from Age Diversity and Having an Intergenerational Workforce

Technology firms that ignore the talents of older workers are doing themselves a disservice. Age is positively correlated with engagement — the 50+ segment is the most engaged across all generations19 — and engagement is positively correlated with higher productivity and higher revenues.20 And contrary to common perceptions, 50+ talent does not cost significantly more than younger workers. Changes in wage structures and benefits offerings have significantly diminished differences in compensation costs for older and younger workers. Marginally higher costs to recruit and retain older workers are offset by lower and more predictable turnover, as well as added knowledge and experience.21

Unfortunately, however, few companies include an age component in their diversity programs and all too often, perversely, companies justify their age-discriminatory practices on the need to bring more diverse candidates from other protected groups. Moreover, employers are not required by federal law to include age in diversity reports. This makes it difficult for them to self-examine their policies and practices for discrimination based on age and makes it difficult for victims to establish age discrimination as well. The high-tech industry would benefit from taking steps to examine its performance on achieving an intergenerational workforce, and to take steps to correct any shortcomings uncovered, such as by incorporating age diversity into its diversity practices.

Conclusion

A few years ago, when the EEOC District Offices in California were developing their Complement Plans to the national strategic enforcement plan, AARP’s California state office submitted comments urging particular attention to hiring issues, including age-related job postings and application procedures, and urged the Commission to pay particular attention to problem industries such as Silicon Valley.22 AARP is pleased that the EEOC is including age diversity in its examination of inclusiveness in the high tech industry, and stands ready to be of assistance in addressing this serious and pernicious problem. Thank you again for the opportunity to participate in today’s discussion.

Footnotes

1 AARP, Staying Ahead of the Curve 2013: The AARP Work and Career Study, Older Workers in an Uneasy Job Market 28 (January, 2014), available at http://www.aarp.org/content/dam/aarp/research/surveys_statistics/general/2014/Staying-Ahead-of-the-Curve-2013-The-Work-and-Career-Study-AARP-res-gen.pdf

2 Id., at 30.

3 Verne Kopytoff, “Tech Industry Job Ads: Older Workers Need Not Apply,” Fortune (June 19, 2014), available at http://fortune.com/2014/06/19/tech-job-ads-discrimination/ [hereinafter Tech Industry Job Ads].

4 Vivek Wadha, “The Case for Old Entrepreneurs,” Washington Post (Dec. 2, 2011), available at https://www.washingtonpost.com/national/on-innovations/the-case-for-old-entrepreneurs/2011/12/02/gIQAulJ3KO_story.html.

5 Noam Scheiber, “The Brutal Ageism of Tech,” New Republic, (March 23, 2014), available at https://newrepublic.com/article/117088/silicons-valleys-brutal-ageism.

6 Andrew S. Ross, “In Silicon Valley, Age Can Be a Curse,” SFGate (Aug. 20, 2013), available at www.sfgate.com/business/bottomline/article/In-Silicon-Valley-age-can-be-a-curse-4742365.php.

7 Josh Feldman, “Maher Rants against Youth Culture, Ageism: ‘Last Acceptable Prejudice'” (Nov. 7, 2104), available at http://www.mediaite.com/tv/maher-ageism-is-the-last-acceptable-prejudice-in-america/.

8 Tech Industry Job Ads, supra n. 3.

9 Id.

10 Vivian Giang, “This Is the Latest Way Employers Mask Age Bias, Lawyers Say,” Fortune (May 4, 2015), available at http://fortune.com/2015/05/04/digital-native-employers-bias/.

11 See e.g., Complaint in Rabin v. PricewaterhouseCoopers LLP, 3:16-cv-02276-JST (filed Apr. 27, 2016, N.D. Calif.).

12 Stefan Theil, “Innovation Grows among Older Workers,” Newsweek (Aug. 20, 2010), available at http://www.newsweek.com/innovation-grows-among-older-workers-71363.

13 The complaint in Heath v. Google, Inc., 5:15-cv-01824-HRL (filed Apr. 22, 2015, N.D. Calif.), alleges that the company violates the ADEA and the California Fair Employment and Housing Act (FEHA) through its hiring and employment practices.

14 Dan Lyons, “When It Comes to Age Bias, Tech Companies Don’t Even Bother to Lie,” LinkedIn.com (Apr. 5, 2016), available at https://www.linkedin.com/pulse/when-comes-age-bias-tech-companies-dont-even-bother-lie-dan-lyons.

15 Adam Bryant, “Brian Halligan, Chief of HubSpot, on the Value of Naps,” New York Times (Dec. 5, 2013), available at http://www.nytimes.com/2013/12/06/business/brian-halligan-chief-of-hubspot-on-the-value-of-naps.html?_r=0.

16 EEOC, Charge Statistics, Statutes by Issue: FY 2010 – FY 2015, available at https://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm.

17 EEOC, Charge Statistics: FY 1997 Through FY 2015, available at https://www.eeoc.gov//eeoc/statistics/enforcement/charges.cfm.

18 29 C.F.R. §§ 1625.4 and 1625.5.

19 AARP, A Business Case for Workers Age 50+: A Look at the Value of Experience 2 (2015), available at http://www.aarp.org/content/dam/aarp/research/surveys_statistics/general/2015/A-Business-Case-Report-for-Workers%20Age%2050Plus-res-gen.pdf.

20 Id., at 18-19.

21 Id., at 46.

22 Letter from Katie Hirning, [then] State Director, AARP California, to EEOC Los Angeles and San Francisco District Offices, re: U.S. Equal Employment Opportunity Commission (EEOC) Local Complement Plans to National Strategic Enforcement Plan (Feb. 27, 2013) (on file with AARP).