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Age discrimination on the job called fastest growing bias in the U.S. Age-bias charges jump 26% since 1990


WASHINGTON -- It felt, Edgar Dippold remembered, "like I was a piece of trash being tossed into the trash can."

Two years ago, Mr. Dippold, then a 62-year-old senior manufacturing engineer for the McDonnell Douglas Corp., was laid off after 39 years with the company. He later attended a job fair for those who'd lost their jobs and "saw all these guys with gray hair.

"You didn't have to be a rocket scientist to figure that one out," he said. "They had just taken younger, lower-paid people and moved them into the void we left behind."

Mr. Dippold and 900 other older workers sued, joining a record number of people who have complained in recent years that they were treated unfairly because of their age.

Age-bias charges filed with federal and state agencies jumped 26 percent since 1990 -- to 30,600 nationwide last year, according to the U.S. Equal Employment Opportunity Commission.

Discrimination based on age is "the fastest growing form of discrimination in the United States," former EEOC Chairman Evan J. Kemp Jr. said.

Why? Most experts cite the economic recession, massive corporate layoffs and the relentless aging of the American work force as the major contributors.

"The increase in the unemployment rate has had a major effect on the volume of [discrimination] litigation," wrote Northwestern law professor John H. Donohue III, who has studied the problem.

In a healthy economy, workers encounter less discrimination and are less likely to sue when they suspect job bias, Mr. Donohue found.

The Age Discrimination in Employment Act of 1967 protects most workers aged 40 and older. The law grew out of Congress' conclusion that older workers were stereotyped as less productive, more costly, less able to learn new technologies and less willing than younger employees to work full time or overtime.

With the aging of the baby boomers, the glut of people born after World War II, a growing proportion of American workers is protected by the age bias law. In the 1990s, for the first time, workers 40 and over accounted for more than 50 percent of the total work force.

"I think there's a great temptation on the part of companies to cut off older workers because they tend to be higher paid," said Gretchen Huston, the EEOC lawyer in St. Louis who handled the case against McDonnell Douglas.

"I don't think so," countered Diane Generous, senior associate -- director for the National Association of Manufacturers. "Companies trying to downsize make an offer, 'here's a lump sum payment, take it or leave it,' and older workers will be more inclined to opt out because they're close to retirement."

Older workers laid off against their will "are unhappy and looking for some kind of recourse against the company, so they go to an attorney," she said.

For Mr. Dippold and thousands of other older workers, layoffs brought jarring and painful ends to their careers. "I looked for another job for awhile," Mr. Dippold recalled, "but there's just nothing out there for someone my age."

Still, a payoff lies ahead for him and the other older workers

discharged by McDonnell Douglas. While the employer said it based its layoffs on performance ratings, not age, two months ago the company agreed to pay $20.1 million to settle the dispute to "avoid costly and time-consuming litigation."

"We understand that tough economic times require tough work force reductions, but business must understand that age cannot be a factor," warned former EEOC chairman Kemp when the settlement was announced.

The settlement was the second largest in EEOC history -- surpassed only by a $35 million settlement with the American Express Co. in 1992.

The EEOC had accused the company's IDS Financial Services subsidiary of firing managers over 40 and replacing them with younger, less experienced managers. IDS contended that the managers were dismissed for poor performance and de

ficient management styles.

When companies settle, they sometimes try to keep the facts secret. The Texas City Bank, in resolving an age-bias dispute with James V. Henley, a bank vice president, persuaded him to keep quiet about the case and persuaded a judge to seal the file.

Now another bank employee, Dorothy Blankenship, wants to prove she also was fired in 1990 because of her age, then 58. But because of the earlier settlement, the EEOC has been unable to question Mr. Henley about the bank's alleged mandatory retirement policy.

Unquestionably, many people file frivolous suits alleging age bias.

There also are older workers whose lethargy and resistance to change fit the "over-the-hill" stereotype. Often, in fact, a fear of lawsuits deters employers from firing unproductive older workers.

"There is a reluctance for employers to take aggressive action against poor performers in the protected age group," said San Francisco lawyer Victor Schacter, who represents corporations. "But that reluctance is not stopping companies which are properly counseled from taking action."

The law requires employers to evaluate workers on their merits, not their ages.

"When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears," the Supreme Court declared in a decision last month.

In that case, the Hazen Paper Co., in Massachusetts, fired its 62-year-old technical director, Walter F. Biggins, in 1986. He claimed age discrimination, noting that he was fired just a few weeks before he was to reach the 10-year service mark for pension eligibility. The company said he had been fired for doing business with competitors of Hazen Paper.

The justices unanimously backed the company. It is not age discrimination to fire an older employee simply because he is nearing the length of service required for pension eligibility, Justice Sandra Day O'Connor wrote for the court.

In other words, a veteran employee under 40 could be eligible for a pension while a newly hired 55-year-old would not.

Workers who win age-bias suits may get back pay, lost wages, benefits and reinstatement. However, they are not entitled to damages for psychological pain and suffering.

But a court can double the amount of back pay if it is proved that the employer deliberately violated -- or recklessly disregarded -- the age discrimination law.

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