2015-10-14
651
Older workers are fighting back against employers who favor youth
By Linda Matchan
Part 1
After 25 years in the news business, most of it as a champion of consumer rights, Paula Lyons was
accustomed to hearing the unexpected. But that wasn't the case last May when she walked into a meeting
with WBZ-TV news director Peter Brown and was told summarily that her contract was not being renewed,
that she was finished at Channel 4.
For once, Lyons, known for her tough, aggressive reporting, was almost speechless. She listened to his
explanation -- the decision wasn't about her or the quality of her work, he said, but a move by the station to
go in a "different direction," including arts and investigative reporting -- but there was no way she was buying
it. What she was thinking was: It's because I'm too old.
"I've become more and more convinced of it," Lyons said last week at her home in Natick. She was 57 at the
time and, from her perspective, at the top of her game. She had two Emmys and numerous other reporting
awards under her belt, and had just received another one from the Associated Press for her enterprise
reporting on a story about drivers of large vehicles who accidentally run over children in driveways and
parking lots. "No one had ever questioned the quality or quantity of my work," said Lyons, whose producer,
52-year-old Diane Schulman Davidow, was also dismissed. Though Lyons recalls being "stunned" at the
time, she's back to being an advocate for the consumer -- only this time she's the consumer: with a
complaint of age discrimination. "It's the ultimate advocacy for myself," said Lyons, who along with her
producer is in the process of mediation with WBZ and with the CBS Corp., which owns the station, in an
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attempt to reach a financial settlement.
"I thought age discrimination was supposed to be illegal," she said. "I'm amazed that the law hasn't properly
responded to this. It's certainly not had the desired effect."
She may be right, judging from the numbers. More than three decades after the Age Discrimination in
Employment Act was enacted in 1967 to protect workers who are 40 and older, age discrimination
complaints have skyrocketed, jumping more than 40 percent since 1999, according to David Grinberg,
spokesman for the Equal Employment Opportunity Commission, which enforces fair employment laws.
The number of allegations filed with the agency has shot up from 14,141 in 1999 to a preliminary estimate of
20,248 in 2003. Most complainants are white men in their 50s, Grinberg said. "It's not isolated in any
particular industry," he said, "and it's widespread, from coast to coast."
Age discrimination seems to be a burden the baby boomer generation has to bear, now that many boomers
are staying longer in the workforce. It's a rude surprise and an ironic twist, given that this age cohort "was
really the catalyst for passing the age discrimination law," Grinberg said, and in light of the fact that a
fundamental tenet of being a boomer is the ideal of being eternally young. (Witness the cover story in last
month's AARP magazine: "Sixty Is the New Thirty.")
Part 2
Old tradition. To be sure, Americans have never exactly revered older workers. "Elders have had a hard time
in American culture for hundreds of years, and there is always some new reason for why the older worker is
perceived as not being as productive or effective as the younger worker," said Pam Haldeman, a sociologist
at Mount St. Mary's College in Los Angeles who teaches courses in gerontology and ageism.
"In agricultural America, and Western society in general, they were seen as a burden because they were less
physically productive, and they held control of the land that would have been passed on to the next
generation," Haldeman said. "In industrializing America, they were looked on as physically less capable of
handling complex machinery. Now we're saying it again about computers: `They can't handle the new
technology. They're not sharp enough.' Only the work context has changed."
Exacerbating matters is the sluggish economy, according to attorneys who handle discrimination cases.
"Whenever the economy is suffering we see age discrimination charges go up," said Laurie McCann, senior
attorney with the AARP in Washington. "When things are not going well, employers have to cut back. It's
almost a knee-jerk reaction to look at older workers."
Some of this is grounded in economic reality: Longtime workers tend to have higher salaries and more costly
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benefits than younger counterparts. But much of it is age bias, attorneys say. "It is absolutely pervasive; it's
insidious and pervades virtually every workplace," said Paul Merry, a Boston attorney and former general
counsel to the Massachusetts Commission Against Discrimination. "People are even unconscious of it,
assuming things like a person in their 50s won't be as energetic or ambitious or mentally sharp as a person
in their 30s or 40s, and it only gets worse as the age number goes up."
Often this discrimination is expressed subtly, said Merry, as in a case he had recently involving a prominent
research and engineering facility west of Boston: "A chief executive said, at a staff meeting, that he was
seeing too many gray heads in the cafeteria."
Sometimes it's not so subtle, as in the infamous remark by former Boston University president John Silber:
"When you've had a long life, and you're `ripe,' it's time to go." Or in the case the EEOC filed in September
against L'Oreal USA, alleging the cosmetics giant discriminated against a former top executive by subjecting
her to a hostile work environment because of her age. The employee, Joyce Head, alleged she was told she
was "too old to move to New York" and needed a makeover "to fit in with L'Oreal's youthful image."
Woolworth suit. Or the case of Donald Russell of Central Falls, R.I., who spent 34 years working for the nowdefunct
F.W. Woolworth Co., 30 of them managing eight stores in the Northeast, including Brookline and
Quincy Center.
When Woolworth was having financial troubles in the late 1990s, a new executive team came in and
demanded that Russell "eliminate all the old-time floor help -- people with pensions and medical who made
more than minimum wage," said Russell, who was then 52. "I fought it as far as I could, but in the end it was,
`You do it, or we'll put in someone who could.' "
He did it -- and then he was fired, too. Russell became part of a successful class-action suit brought by the
EEOC involving 678 older former Woolworth employees nationwide; it alleged that the company sanctioned
a campaign of harassment during its corporate restructuring program and targeted employees 40 and older
for layoffs, replacing many of them with younger people.
The case was settled a year ago for $3.5 million; Russell's share was $12,000 -- "just chump change," he
said, considering he'd worked 60 to 65 hours a week for much of his 30-plus year career. He now runs a pet
store, Dr. Doolittle's, in East Providence, R.I.
More than 100 age-bias comments by Woolworth executives and managers were documented in the case,
including one by president and CEO Paul Davies, who stated in a memo that Woolworth "hired 80 store
managers to replace old and overpaid store managers"; and another by Donald Dill, the Woolworth director
of human resources for the Pacific region, who told managers that older employees "were slower and they're
not part of the new company.... The company's passed them by."
Dill even remarked, about an older store employee: "Why would I come in here? The lady has to be 60 years
old and homely up at the front. Why don't we have somebody nice, young, nice, smiley (sic), perky-type of
person?"
"They started saying you couldn't take time off and they'd make the rules really strict," said Grace Goss of
Hyde Park, who at age 55 was fired from her job as a scan coordinator for the Woolworth's in downtown
Boston. "Then they started saying they had to lay people off, but would hire a lot of younger people. They
told us our jobs were no longer needed, but it wasn't true. Someone still had to order what was needed;
someone still had to supervise. That didn't eliminate the jobs; they just wanted to eliminate us. It was a very
unfair thing to do. You're not useless just because you're older, but it makes you feel that way."
"I think that one of the most difficult things for the people I deal with is that a lot of them really were doing fine
in their careers," said Boston attorney Nancy Shilepsky. "There is this sense of shock, outrage, and disbelief,
the sense of `I am not old! I still have too much to give.' The problem is that there aren't enough jobs. A lot of
younger people who entered the job market had higher expectations of what they were supposed to receive
in their careers at earlier stages. So you have companies having to keep a certain generation happy that isn't
going to wait in line."
Part 3
An acceptable bias. While managers are increasingly becoming sensitized to the notion that it's bad form to
make racist or sexist comments, "there is still a social acceptability to some forms of age discrimination,"
Shilepsky says. "A supervisor might think there's nothing wrong with saying, "Isn't it time you stepped aside,
buddy, and let younger people come up?"
This is pretty much what happened to Paul Cummings of Dedham, who successfully sued his former
employer in 2000 for $2 million. Cummings, a manager for a business form manufacturer, had worked for a
company called Uarco for 17 years, but shortly after the company was taken over by the Standard Register
Co. of Ohio in 1998, Cummings, then 49, was told by his new boss that "I didn't fit the current model of being
young, handsome, and aggressive," he said.
"After 17 years of growing within the company and being promoted and so forth, everything went down the
tubes because I didn't fit that model," said Cummings, who said he was replaced by two younger
salespeople. "It was so devastating to me. I actually broke down afterwards. They knew the blood and sweat
I'd put into my job. I traveled three or four days a week. I felt very young, in the prime of health. I was at the
top of the sales game; I got many awards. I couldn't understand why they would terminate someone older to
put in someone who has less success in the job. This has been perplexing to me for a long time. In my
opinion, excellence knows no age."
But huge award settlements in age discrimination cases are rare, attorneys say. "The law on age
discrimination has evolved in such a way as to make these cases some of the hardest cases to bring," said
Laura Studen of Burns & Levinson, Paula Lyons's attorney. "You have to prove the decision was tainted by
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age animus" -- that is, that the criteria for dismissing someone was age bias.
Proving it is rarely straightforward.
"There are so many technical hurdles federal courts have erected," said Boston attorney David Rapaport,
who last year had a case of age discrimination dismissed in federal court before it could get to trial, despite
evidence that his 53-year-old client, who'd been replaced by a 36-year-old subordinate, had repeatedly been
asked about his retirement plans; and despite his employer's admission that management had been
discussing the client's age at a meeting about whether to terminate him. "It's fairly discouraging. And around
Boston, employers are very sophisticated. Everybody knows you don't say to someone, `You're too old,' or
use code words like, `We need young blood.' "
Lyons and her producer spent 12 hours in mediation Monday as an alternative to litigation, Studen said, "and
it's not over yet." (Lyons and Schulman are both alleging age discrimination as well as gender
discrimination.) A spokesman for WBZ said yesterday the station would not comment.
Though still angry about her termination, Lyons seems resigned to the fact that her TV career is probably
over. She's hoping the outcome of the mediation will be "a fair amount of money so I can reinvent myself. I
know that I will be looking for new ways to help consumers, and I'm thinking I would like most to do that from
a public speaking platform and by consulting to businesses who care about their customers and want to
serve them well."
Would speaking out about age discrimination be part of her agenda? "I would love it to be part of what I talk
about," Lyons said. "But I have to ask myself: "Do I want to be a poster child for this?"
