Published Sep. 30, 2020
Tens of millions of Americans lost their jobs as part of the economic downturn that resulted from the COVID-19 pandemic. And because older workers are often some of the first to be let go and the last to be hired, employees ages 50 and up may find themselves especially vulnerable whenever unemployment rates surge.
An increase in older workers filing for unemployment also means a likely increase in the filing of age discrimination complaints.
Using historical data from the Equal Employment Opportunity Commission (EEOC), we identified the worst states for age discrimination in the workplace from 1997 to 2019. We also found the states where trends in age discrimination claims are improving and where they’re getting worse.
The data includes all age discrimination complaints reported to the EEOC over a 23-year period and measures the number of complaints per 100,000 people for each state.
Best and Worst States for Age Discrimination
According to EEOC data, Mississippi had the highest rate of workplace age discrimination complaints from 1997 to 2019, with 9.1 cases per 100,000 people.
Arkansas (8.5), Pennsylvania (8.0), Georgia (7.7) and Tennessee (7.7) rounded out the top five.
Maine had the lowest rate of age discrimination at just 0.2 complaints per 100,000 people. Maine was joined by Idaho (0.4), Montana (0.7), Oregon (0.8) and New Hampshire (0.9) as the five states with the lowest rates of workplace age discrimination.
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Where Is Age Discrimination Getting Worse?
While Montana has historically seen low rates of workplace age discrimination, that trend may be shifting. When looking at the states with the biggest increases of age discrimination complaints from 2018 to 2019, it was Montana on top with a 250% increase.
That was significantly higher than Connecticut, which was the state with the next-highest increase at 73%.
Tennessee and Nevada ranked in the top 10 for both the highest historical rates of age discrimination claims and the highest increases of claims from 2018 to 2019. In those states, workplace age discrimination has historically been high relative to other states and continued to worsen from 2018 to 2019.
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What States Are Improving?
Several states actually saw a decrease in workplace age discrimination from 2018 to 2019. New Hampshire and North Dakota were the states with the sharpest decline in reported incidents, each with a 43% drop in claims.
New Hampshire joined Maine, Oregon, Nebraska and Utah as the states that ranked in the top 10 for both the lowest historical rates of age discrimination as well as the most improved rates from 2018 to 2019.
Trends in Workplace Age Discrimination
When looking at the number of age discrimination complaints filed by year, one obvious correlation emerges: Higher unemployment equates to more workplace age discrimination claims.
From 1997 to 2019, the number of age discrimination complaints spiked in 2008, the year of the Great Recession when more than 13% of Americans went unemployed at one time or another during the year. And when you compare unemployment rates and age discrimination claims by year in the chart below, you can see the correlation.
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What’s especially troubling for older workers is that the unemployment rate for Americans 65 and older rose about 2.5 times more in April 2020 than it did at the peak of the Great Recession, opening the door for an increased number of age discrimination cases.
Types of Age Discrimination Complaints and the Impacts of COVID-19
Age discrimination can come in a variety of forms. In fact, the EEOC recognizes 49 specific types of discrimination claims that could potentially be tied to age discrimination.
From 2010 to 2019, nearly 3 in 10 age discrimination complaints centered around discharge, which could include layoffs and firings. Terms and conditions of employment (13%) and harassment (11%) were the next most frequently reported issues related to age discrimination.
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Many of these types of age discrimination are likely to surface amidst the COVID-19 pandemic.
Complaints over discharge may involve older workers who are fired after refusing to return to work out of concerns for their safety. Other discharge complaints could involve employers who lay off an older worker out of fear for having to pay for sick leave or other compensation if that worker were to contract COVID-19.
“My clients are being told they’re laid off because of COVID and are asking why the kid they trained for two years still has a job. The question is what criteria they’re using to say who stays and who goes.” - Stephen Console, Console Mattiacci Law, Philadelphia, PA1
“Terms and conditions” complaints may also emerge, as older employees may be told by their superiors to stay home while younger workers are brought back to the office. Or in the opposite scenario, older workers may wish to work from home but get turned down while the request is granted to younger employees who may be seen as more technologically suited for such an arrangement.
Harassment claims could also arise from older employees being unduly pressured, threatened or otherwise harassed about returning or not returning to work during the pandemic.
Also in the top five of age discrimination complaints are those involving hiring decisions, which could affect older workers being unlawfully passed over when they attempt to rejoin the workforce.
“I expect more employers may think older workers are a liability (concerning COVID-19). They’ll say on average these workers are more susceptible, and as a group, they’ll prefer younger workers.” - Patrick Button, Assistant Professor of Economics, Tulane University1
Rates of Complaint Resolution
Perhaps the only thing more startling than the high number of age discrimination complaints filed is the low number of complaints that ever get resolved.
89% of all age discrimination cases are dismissed due to no reasonable cause for EEOC action being found (64%) or because the complaint was closed for administrative reasons (20%) or was withdrawn (5%).
Just 7% of all age discrimination complaints actually reach a settlement.
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Of the few cases that are actually resolved with a merit resolution, charging parties have received an average of $32,600.
As can be expected, the number of merit resolutions correlates roughly with the overall number of age discrimination complaints in a given year.
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Merit resolutions were at their highest immediately following the Great Recession, which also saw the highest overall number of age discrimination incidents.
Conclusion
The data show a strong correlation between unemployment rates and the number of workplace age discrimination complaints. As unemployment spiked in the early 2000s and again at the height of the Great Recession, so too did the rate of age discrimination complaints.
With 2020 unemployment rates surpassing those from 2008, it stands to reason there may be a vast increase in age discrimination complaints filed in 2020. And with unemployment rates among workers age 65 and over being 2.5 times higher than they were in 2008, there is an even greater chance of age discrimination cases spiking significantly.
The data lead us to conclude that the Department of Labor will experience a considerable surge in workplace age discrimination claims filed by older workers in the months and years to come. And workers in states that have seen historically high rates of age discrimination or recent upticks in age discrimination may be particularly vulnerable.
According to the ABA Journal, labor and employment attorneys across the nation have already begun receiving numerous questions and complaints about layoffs, firings and recalls to the workplace that involve potential age discrimination against older workers.
“When the dust settles and we see the full complement of people not coming back, then lawsuits will be brought and there will be analyses of their ages, sex, disabilities and race. We haven’t seen as many lawsuits yet as we are likely to see.” - Louis DiLorenzo, Head of Labor and Employment Practice at Bond, Schoeneck & King1
Methodology and Data Notes
This project uses data from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics. The most recent year of the data is 2019. The data was accessed in September of 2020 for use in this project.
Age discrimination reports and incident issue types from 1997 to 2019 were analyzed on a state-by-state basis and nationally. For graphics exploring the data by state, the available years were 2009 to 2019. For all other graphics, the data encompass 1997 to 2019.
For this project, we analyzed age discrimination reports which fall under the Age Discrimination in Employment Act (ADEA) category in the original data.
The total number of cases was calculated using the “Charge Statistics (National, FY 1997 - 2019)” data tables. This figure reflects the total number of individual complaints filed. It is possible for one individual to report multiple types of discrimination.
For the graphic titled “Here is how age discrimination complaints were resolved:” the categories were altered for readability. These were the changes:
- “Closed for administrative reasons” represents the EEOC’s “Administrative Closures”
- “Complaint withdrawn” represents the EEOC’s “Withdrawals w/Benefits”
- “Considered for litigation” represents the EEOC’s “Unsuccessful Conciliations”
- “Informal resolution reached” represents the EEOC’s “Successful Conciliations”
Per-capita calculations per state were calculated using American census population data for 2019. The calculation is as follows: (Total number of ADEA discrimination reports per state/State population)*100,000.
1 Quotes taken from:
Meyer, Harris. (Sep. 1, 2020). A flood of age discrimination lawsuits is expected from COVID-19 and the economic downturn. ABA Journal. Retrieved from www.abajournal.com/web/article/flood-of-age-discrimination-suits-expected-with-pandemic-economic-downturn.
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