AARP office in Washington, D.C.
AARP office in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

Company policies such as mandatory retirement—a common practice adopted in partnership deals at major law and accounting firms—should be scrutinized as a possible violation of age discrimination laws, an AARP in-house lawyer told the U.S. Equal Employment Opportunity Commission on Wednesday.

Laurie McCann, a senior attorney from the AARP Foundation Litigation, told commissioners at a public meeting that age discrimination should not be treated as a “second-class civil rights” issue and greater enforcement is needed to address policies that may be breaking federal laws.

“Many employers engage in practices that are obviously age-based,” McCann said. “Regulations do little to deter improper behavior and whether scrutiny happens is uncertain.” She added: “We urge [the commission] to take bolder action to ensure these workers are treated fairly.”

Employment experts appeared before the commission at the agency’s headquarters to discuss persistent age discrimination among older workers, in part to highlight the 50th anniversary of the Age Discrimination in Employment Act.

Data presented Wednesday show persistent discrimination against the aging and growing older workforce is common. It can be prevented by addressing policies at large companies, the panelists and commissioners said, including looking at mandatory retirement policies, analyzing online job application requirements, such as date of birth and graduation dates, and limiting applicants based on maximum number of years for a job.

Many large law firms have mandatory retirement policies as part of partnerships but many have dropped the traditional policy in recent years. A 2006 survey report indicated that 57 percent of law firms with 100 or more attorneys have mandatory retirement age policies, according to Outten & Golden. The firm, which specializes in labor and employment law, suggested legal challenges to these policies at law firms are likely to become more common as baby boomers reach retirement age.

In 1986, amendments to the age discrimination laws eliminated a previous age 70 cap and made it unlawful for employers to compel employees to retire. Partners at companies such as law firms or medical practices can be considered an employer rather than an employee, and therefore not be subject to civil rights laws.

The AARP recommended the EEOC ensure that employers do not evade the discrimination laws by simply labeling their employees as partners, but treating them as employees. McCann said that evasion is common, particularly among law firms, accounting firms and medical practices. Those policies, she said, “taint all aspects of employment from start to finish.”

“It used to be a small group that had control at the firm. You now have big accounting firms and law firms that have hundreds of partners—or they are employees with the label of a partner,” McCann told The National Law Journal. “By just putting [the] label ‘partner,’ you deprive them of rights with mandatory requirement but they are not protected by any civil rights statutes.” She continued: “We are asking the commission to look beyond the labels.”

Jenny Yang.

EEOC Commissioner Jenny Yang said there are many practices that employers may not often realize are creating barriers for an aging workforce, including mandatory retirement ages. She also noted practices requiring workers to act as digital natives and creating biased hiring forms.

“Age discrimination remains a real problem in our country,” Yang said. “The new economy is impacting older workers. It will remain vital to challenge stereotypes and identity for well-qualified older workers. … We need to take a close look at employment practices and whether what is in place serve as barriers because of those practices.”

In 2007, the EEOC took on law firm Sidley Austin for forcing employees into partnerships because of their age. The firm paid $27.5 million to 32 former partners in that case.

At the time, Ronald Cooper, the EEOC general counsel, said in a statement: “The demographic changes in America assure that we will see more opportunities for age discrimination to occur.”

The issue of age discrimination is more pressing as the workforce ages and people want to continue working longer, and companies need to innovate to address this movement, said Jacquelyn James of The Sloan Center on Aging & Work at Boston College.

Nearly two-thirds of workers between 55 and 64 said age is a barrier to getting a job, according to a 2017 AARP survey. The commission also noted by 2060, workers 65 and older will make up 29 percent of the workforce, up 18 percent as of the latest data, and from 9 percent in the 1960s.

A 2015 study by panelist Patrick Button, assistant professor of economics at Tulane University and a researcher with the National Bureau of Economic Research’s Disability Research Center, found discrimination in hiring women and older applicants among employers.

John Challenger of the firm Challenger, Gray & Christmas, told the commission, citing U.S. Bureau of Labor Statistics data, that if more older workers stayed in the workforce, it would significantly reduce the skilled worker shortage in the United States.

Sara Czaja, director of the Center on Research and Education for Aging and Technology Enhancement said employers need to recognize the value of older workers.

“Unfortunately, numerous negative stereotypes about older workers still exist that often prevent or have a negative impact on employment opportunities for older people,” Czaja said.

Acting Commission chair Victoria Lipnic said the commission with added resources, will look at strategies and review regulations to address the issues discussed at Wednesday’s meeting. “We hope to build on the conversation today on outdated assumptions about age and work,” Lipnic said.

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