The Need to Protect Our Aging Workforce
Robyn Blumner

If Congress seriously flirts with the idea being floated by the president's deficit commission, that of slowly raising the age of eligibility for full Social Security benefits to 69, then it will need to address another bit of business: protecting older workers from getting laid off simply because they're old and expensive.

There was a time in the halcyon days when working for a company for 20 or 30 or more years engendered an implied reciprocal obligation of loyalty. If layoffs occurred, they were based on a last-in, first-out standard as a way to communicate to a workforce that people mattered. Workers with longevity felt secure knowing that as long as they worked hard, they weren't going to be treated as expendable cogs -- easily disposed of when it served the bottom line to nix someone at their pay grade.

This unwritten rule of workplace morality promised workers that they would not be set adrift during their most vulnerable time of life -- before they qualified for retirement benefits but after they were past the age of reasonable job mobility.

But let's face it; those days are gone. Now, only workers lucky enough to be in unions, or who are protected by tenure or a civil-service-type system -- where there are legal constraints on ousting staff with seniority -- enjoy that kind of job security.

Then came the roaring recession, and the older workers who got laid off during this Darwinian epoch have found that getting another job is ridiculously hard. In a study titled "The New Unemployables: Older Job Seekers Struggle to Find Work During the Great Recession" by Boston College's Sloan Center on Aging & Work, 67 percent of surveyed job seekers age 55 or over were looking for work after more than a year, compared with 43 percent of younger workers. The difficult truism of today's tight economy is that employers are disinterested in hiring someone older. They perceive a gray head as less productive, or as someone who might soon have health problems, or who might expect higher earnings. Basically the same reasons for letting them go in the first place.

Yes, that's age discrimination, and, yes, it's illegal. But the conservatives on the U.S. Supreme Court rendered federal law against age discrimination toothless, recently making it much harder for older workers to succeed in court.

Up until the ruling last year in Gross v. FBL Financial Services, Inc., if an employee could demonstrate that age was one of the motivating factors in a layoff, firing or demotion, the employer would then have to show that there was a legitimate, non-age-related reason for the adverse action. But in a 5-to-4 decision authored by Justice Clarence Thomas and joined by the court's conservatives, Thomas tossed away this burden-shifting and said that from now on the burden is entirely on the employee to show that age was the factor in the employer's decision. An employer would almost have to openly declare, "Get out of here, you old geezer, you!" for an employee to win.

Sen. Patrick Leahy, D-Vt., and other Democrats in Congress have sponsored legislation to essentially restore the law to what it was before the Supremes stomped on it, but, with Republicans taking over the House in January, that vital fix is probably going nowhere.

Now, back to Social Security benefits. If our retirement lifeline is going to be postponed, with Americans expected to work until they are almost 70 years old, there have to be some corresponding new protections in place for older workers. Whatever those are, they should probably go beyond tightened age discrimination laws to include some form of added due process protection for workers with longevity. Otherwise, this country is going to see a rash of people laid off in their 60s who have no real prospects for other commensurate jobs, and who will have to prematurely spend down savings and ultimately abandon the life that they built over decades of employment.

Once again, it comes down to what kind of country we want to be.

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