Too much experience to be hired? Some older Americans face age bias

Most baby boomers say that they plan to keep working past conventional retirement age. But to do that, they have to get hired first. New research shows that can be harder when you're older.

The study was conducted by David Neumark, who is a professor of economics at the University of California, Irvine, and two other economists. They sent out 40,000 resumes for thousands of real jobs. The resumes for any given job were identical except for age.

"The call-back rate — the rate by which employers contact us and say we'd like to interview you — drops from young applicants to middle-aged applicants and drops further from middle-aged applicants to older applicants," Neumark says.

He also found the results were worse for older women than for older men. For women, he says, "the call-back rates dropped by around a quarter when you go from the young group to the middle-aged group. ... And they drop by another quarter when you go from the middle-age group to ... around age 65."

Blatant discrimination against older workers is illegal. For example, an employer couldn't advertise a job saying "people over 40 need not apply." A 50-year-old law called the Age Discrimination in Employment Act prevents that. But there are other ways employers try to screen for age. For example, one company said that ideal candidates for regional sales jobs would be just two to three years out of college and that applicants with eight to 10 years of experience should be avoided. These were actual guidelines that tobacco company R.J. Reynolds gave to job recruiters. As a result, out of about 1,000 people hired for these positions, only 19 were over the age of 40.

This resulted in a lawsuit — made possible by a job recruiter who turned whistleblower and gave documents with the hiring guidelines to lawyers at the San Francisco firm Altshuler Berzon, which specializes in employment law.

The lawyers contacted the rejected job seekers, including a Georgia man named Billy Carter. He said he'd had no idea why he didn't get the R.J. Reynolds job until he got a letter from the lawyers.

"It made me mad," says Carter, especially when he realized that he wasn't the only one. "I know I could have been an asset to that company. It was very upsetting."

Below is an exhibit from an age discrimination complaint filed by Richard M. Villarreal against R.J. Reynolds. It shows resume review guidelines provided by R.J. Reynolds to Kelly Services to screen job applicants. It says Kelly should "stay away from" applicants who have been "in sales for 8-10 years."

Carter is not yet a plaintiff in the lawsuit. He is one of a dozen people Reynolds rejected who have petitioned the court to join the suit as additional plaintiffs. Currently, the only plaintiff is a man named Richard Villarreal. (Read his complaint.)

R.J. Reynolds and its attorney declined to comment because of the pending litigation. But in court documents, it doesn't deal with the discrimination charge. Its argument is that Villarreal doesn't even have a right to sue, that he waited too long to take action and that the age discrimination law protects people who have jobs — not people looking for jobs.

This is an exhibit in a complaint filed by Richard Villarreal against R.J. Reynolds for age discrimination. It shows that R.J. Reynolds considered the least desirable candidates for its territory manager positions to be those with the most experience. The company called ideal candidates for these jobs "Blue Chip TM."

The courts have been torn on these issues. Reynolds won in federal district court, but Villarreal won on appeal. Reynolds then asked for the full appeals court of the 11th Circuit to hear the case and won that round. However, even the judges who sided with Reynolds did so for different reasons, authoring three separate opinions. Villarreal is now waiting to hear whether the Supreme Court will take his case. The Villarreal lawsuit has attracted the attention of advocates for older adults. AARP has filed a friend of the court brief, as have some labor economists, including Neumark. Meanwhile, Congress could take action. A bipartisan group of senators has introduced a bill that would clarify the Age Discrimination in Employment Act. Whatever happens in Congress or in the courts, discrimination against older workers is going to be a bigger issue if for no other reason than people are living longer lives and wanting — and needing — to work longer, too. Copyright 2019 NPR. To see more, visit https://www.npr.org.