Age discrimination, subtle and obvious

On the Job regularly hears from older workers about perceived slights in the workplace and, with the economy limping along, the difficulties they encounter as they attempt to change careers or get a new job after being laid off.

Of course, a perception of discrimination does not always a lawsuit make. But older workers can anticipate some age-related situations and be prepared to deal with them.

Q: I applied for a job with a contractor for the National Institutes of Health, a subsidiary of one of the largest communications firms in the world. After the first interview with someone who may, at most, be 25 years old (I am 47), I was told by the human resources person that the manager said I was her top choice. I was asked to a second interview with the VP, whose only question to me was "How do you feel working for someone so much younger than you are?" I was astonished and said I had no problem. Before then, everyone was very friendly. Now, HR informs me that the job has been readvertised and no decision has been made yet on filling it. The job involves answering inquiries, and I have years of experience doing such work. Am I a victim of age discrimination? What can I do?

A: Dorine Andrews reinvented her work life at 52 and became a research professor at Georgetown University. As chair of Forty Plus of Greater Washington, a support group for older jobless workers, she described the vice president's question as a clear indicator of his disregard for older workers.

"I'm not sure I'd want to work for a place like that," Andrews said. "I'd call the HR person and tell them of the inappropriate treatment."

But she and Laurie McCann, senior attorney for AARP Foundation Litigation, both said that by itself the comment would not make for a winning age-discrimination lawsuit.

"It certainly wouldn't be considered by a court to be a smoking gun," McCann said. "But it's strong circumstantial evidence" of a violation of the 1967 Federal Age Discrimination in Employment Act, she said.

So, what to do?

McCann said: "I would ask them for a reason why he's no longer being considered. Pin them down." Thus, she said, if the worker eventually makes an age-discrimination claim to the Equal Employment Opportunity Commission, the worker will have a record of what was said and what the explanation was.

"That question alone is not going to win a lawsuit, but it's very strong that they discriminated against him," she said. "Definitely alarms should go off when you're asked that question."

McCann said it is "not per se illegal to ask someone's age, but any such request would be strongly scrutinized. It would only be justified when age would be a qualifying factor." For instance, airline pilots must retire at age 60.

Most interviewers already would know a job seeker's age from his or her resume or application, McCann said. But if the question is asked, she said, "you might turn it around and ask how relevant is it. But you should never lie and say you're 47 when you're 57, even though you might look 47. It's always going to come back to haunt you, and if you get the job and then get caught, you'll get fired."

Said Andrews, who is 55: "I talk about my age all the time. 'Here it is, guys. Get used to it.' Turn your age into an advantage. Make it a non-issue. You might ask, 'What is the difference between an older or younger person doing this job?'

"Companies will go for the younger person unless the older person can show that they have an advantage of wisdom and experience," Andrews added. "There's a stereotype that older workers are not adaptive. So when I'm interviewing older workers, I look to see if they've gone back to school, whether they're keeping up their knowledge with new skills."

Q: At 41, I haven't found my age to be an issue, at least not to my knowledge, but isn't it somewhat unfair, and maybe illegal, for firms to advertise that they want someone right out of school? The reason they do this is to save money, but ironically, these days they pay people right out of school what government workers make with 20 years in. The moral of this: Don't expect fairness.

A: McCann said there is nothing in the age-discrimination law that specifically prohibits use of a phrase mentioning that an employer is seeking a new college graduate.

Nonetheless, she said, the EEOC might well frown on such advertising if it were brought to the agency's attention.

Andrews said that as a practical matter, workers sooner or later learn that "life is unfair." She said older workers switching careers often mistakenly think they'll get paid as much or more in a different field as they did at their previous job.

In reality, she said, new employers "don't want to pay for that experience. They'll tell you you are overqualified. Sometimes you've got to start over at the bottom."

Her ultimate admonition for older workers: "If you see yourself as a victim, you'll be a victim and others will see you as a whiner."