[Erin] The age of experience

The Supreme Court ruled this week overwhelmingly in favor of older workers in possible cases of age discrimination. From the New York Times:

In the case on Thursday, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer was faced with laying off some employees after a voluntary buyout failed to produce the desired staff reduction. Managers were instructed to rate employees for how "flexible" and "retrainable" they were. Of the 31 who were eventually laid off, 30 were at least 40 years old.

The age discrimination law provides that an employment action that would be "otherwise prohibited" is lawful if "the differentiation is based on reasonable factors other than age." The question in the case was what happens once an employer invokes this defense: does the employer have to prove, or do the plaintiffs have to disprove, the existence of the reasonable non-age factors? [...]

In his majority opinion overturning the appeals court's decision, Justice David H. Souter said the structure of the statute made it clear that the defense was "entirely the responsibility of the party raising it." He said that by using the phrase "otherwise prohibited," Congress meant to offer employers "an excuse or justification for behavior that, standing alone, violates the statute's prohibition," but only if they could prove their entitlement to the defense.

"There is no denying that putting employers to the work of persuading fact-finders that their choices are reasonable makes it harder and costlier to defend," Justice Souter said. But that is a complaint to make to Congress, he added.

Like many crunchy conservatives, I suspect, I have mixed thoughts about workplace discrimination laws and policies in the United States. On the one hand, trusting corporate employers to do the right thing not only in cases of age discrimination, but the more prevalent situations involving race and gender, doesn't seem like a good risk to take; surprising though it may be to some, Catholic social teachings tend to favor the worker, and to outline the employer relationship in terms of things like responsibility to the worker. On the other hand, like many Americans, I've seen the sometimes unintended consequences of diversity laws and policies in the workplace, and realize that sometimes these policies have more negative effects not only for all workers, but even for the very people they're supposed to protect, than are generally recognized.

Still, I find this decision of the Supreme Court to be eminently reasonable. If the law exists, and if the law makes mention of the possibility that some decisions which seem to effect disproportionate numbers of older workers may in fact have sound reasons based on something other than age, then it seems logical to think, as the Court did, that the burden of proving those sound reasons exist is on the employer, and not on the displaced employee whose dwindling resources and desperate need to secure a new job aren't going to allow him to pursue lengthy expensive legal actions against the employer who fired him.

And this decision may also help, eventually, to rein in some of the more blatant age-discrimination in hiring that sometimes goes on even now; here's just one example of "helpful tips" for the older job seeker that are aimed at making sure the prospective employer can't guess his age before he interviews for the position. Is it discrimination for employers to reject older workers sight unseen? If it would be discrimination for them to weed out resumes with female or Hispanic names, or to discard the ones where the candidate graduated from a historically black college, then I think it should also be illegal for employers to reject resumes which contain more than fifteen years of job experience or which list college graduation dates from two decades ago.

It will be interesting to see whether that ends up being the case. But to me it's troubling that age and experience are considered detriments, not advantages, in prospective employees in the first place; as a commenter on a forum about age discrimination put it, companies that routinely discriminate against older workers probably aren't worth working for.