Older Workers Say Age Discrimination Behind Wave of Job Cuts

Two days after Visteon Corp. eliminated his job, a glum Terry Kolesar drove to a placement seminar arranged by his longtime employer. He found a seat and looked around at the 17 other luckless co-workers. What he saw fanned his dejection into anger — lots of graying hair, more than a few pairs of reading glasses and wrinkles around the eyes. Like himself, Kolesar says, most of the others targeted by Visteon appeared to be over 50. “Tell me this wasn’t ‘Let’s flush out the old guys and get new some new guys in here to replace them,’ ” said Kolesar, a financial analyst who worked for the giant auto parts maker in Dearborn, Mich. for 24 of his 54 years. More workers like Kolesar are alleging age discrimination as many of the nation’s largest companies enact deep job cuts. The cuts, following an economic surge that long had employers bemoaning a shortage of skilled workers, comes as the first Baby Boomers turn 55 this year. But as they weigh suits against companies, some of those pushed from their jobs are testing the limitations of a little-known law, one that is supposed to help expose age discrimination, but has workers playing sleuth, piecing together bits of information with one eye on the calendar. In the days after the April seminar, Kolesar sequestered himself in his dining room, using a personal computer Visteon bought for his family. He and former co-worker Joel DeLong, 51, began combing the ranks of layoff victims for information. Over the next few weeks, they compiled a mailing list of more than 300 names and Kolesar built a spreadsheet that accounted for nearly 600 of the 1,300 workers cut by Visteon. In May, the two men and six others sued, based on statistics they say shows Visteon cut 30 percent of workers aged 56 and older, and 15 percent of those 51 to 55, while just 6 percent of those under 40 lost their jobs. The key to their claim is the Older Workers Benefit Protection Act of 1990, or OWBPA, aimed at workers 40 and over. It requires companies to provide workers with age-specific data about who is targeted and who remains on the job after layoffs or early-retirement buyouts. The law kicks in when employers ask workers to sign agreements not to sue the company in exchange for a larger severance package. With age data in hand, and 45 days to think things over, workers are supposed to have the information they need to decide whether to sign the waiver or if they have grounds for a lawsuit. But many companies deliver the data in ways making it difficult for workers to understand, employment lawyers and advocates say. Kolesar was given a single sheet of paper with job titles and ages for just 11 other workers, making it difficult to see a broad pattern of discrimination. In the past, layoff victims have complained of data dividing workers into broad age-bands, rather than giving specific ages, a practice that has been outlawed. The suit against Visteon is one of a few brought against companies in recent years that hinge on the age distribution reports required by OWBPA. Last June, two former employees of Lucent Technologies Inc., headquartered in New Jersey, sued the company in federal court in Atlanta claiming they were victims of the company’s “ongoing scheme … to purge its older management employees,” an effort they say Lucent tried to camouflage by providing misleading age distribution figures. Last month, the Massachusetts Attorney General’s office and the Equal Employment Opportunity Commission scored a partial victory over Bull HN Information Systems, the U.S. subsidiary of Paris-based Groupe Bull. In that case, a federal judge ruled Bull failed to provide workers with the required age data when their jobs were cut in the mid-90s. Spokesmen for Visteon and Lucent declined to comment on the charges lodged by former workers, citing their status in litigation. Steve Puleo, a spokesman for Mass.-based Bull, said the company did not provide age data to fired workers because of a lack of clarity in the law, but now routinely supplies such information. Lawyers for some workers say the problems continue elsewhere. “The statute is clear, and it’s amazing how companies don’t follow the law,” said L. Steven Platt, a Chicago attorney and past president of the National Employment Lawyers Association. “When they provide the information, they’re providing it … so people can’t figure out what’s going on.” Employers disagree emphatically. They say they’re doing their best to comply with OWBPA, but describe the law as cumbersome. Most workers “are looking forward to that golden parachute, and so most people aren’t interested” in the age data, said Ann Reesman, general counsel for the Equal Employment Advisory Council, an alliance of 350 companies focused on workplace discrimination issues. “For those that are interested, there should be plenty of information.” But the age data could prove particularly useful to a growing number of workers, given the graying of the nation’s labor force and increasing concerns about ageism. The median age of the U.S. labor force has climbed from 34.6 years old in the early 1980s to 39.2 years old in 2000. It will reach 41 years old by 2008, the U.S. Bureau of Labor Statistics says. Age discrimination complaints also have turned sharply upward recently after dropping steadily through the 1990s, according to EEOC figures. Such charges fell from 19,800 in 1993 to 14,000 in 1999. But last year, age-based complaints jumped 13.2 percent to 16,000. In the first half of the current fiscal year, complaints jumped another 15.4 percent to about 9,300, compared to 8,250 in the same period last year. About half of all age discrimination complaints are filed by workers who have been fired or temporarily laid off. The increase in age complaints far outpaces total discrimination charges, up 3.1 percent in 2000 and just 0.9 percent so far this year. Complaints based on gender, race, religion and national origin have all fallen this year. “If you do look at the trends, you’ll note that the number of age cases we have will increase when there are significant numbers of layoffs,” said Paul Boymel, a senior attorney in the EEOC’s Office of Legal Counsel. Older employees in long-term jobs lose work at a higher rate than younger counterparts. Among workers in their jobs at least three years, about 5 percent of those 55 and older lost their jobs in the late 1990s, compared with 3.5 percent of the youngest workers, according to the labor statistics bureau. Critics say companies target older workers because of their higher salaries and the cost of their insurance and other benefits. Others say age discrimination is more subtle, rooted in a belief among many managers that older workers are less adaptable to change and don’t have the latest skills needed to move a company forward. Workers at several companies, including Ford and Lucent, have made that argument in lawsuits targeting employers’ “forced ranking” systems. Such systems require managers to single out a small group of workers as poor performers, a designation that often leads to demotion or dismissal. Older workers are often targeted, suits allege. The age data required by the OWBPA could make it possible to spot a pattern of discrimination. But Dan Klein, the Atlanta lawyer for the two Lucent employees who sued, said workers worried about their financial futures are ill-equipped to scrutinize data that companies tailor to put themselves in the best light. “When you tell somebody you’re going to lose a job in two or three weeks, if you put $30,000 or $40,000 in front of them, he’s likely to grasp at it and sign a release,” Klein said. The choice between the full severance available by signing the waiver, and the lesser package that comes with the right to sue, gave Kolesar reason for pause. Visteon would’ve paid him $105,661 — one year’s salary — if he signed, but is only paying him $26,415 because he didn’t. For older workers, such choices may only be a sign of what’s to come, co-worker DeLong said. “Things are changing rapidly,” he said, “and I don’t know that there’s any guarantee for anybody anymore.” Copyright 2001 Associated Press. All Rights Reserved. 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