Discrimination Begins at 40

Older employees invoke a federal law to fight for their jobs

Harold Keane's personnel file contained nothing but plaudits. But when a new boss took over, he wanted his own people and told Keane: "We're reorganizing, and there's no place for you." Keane, 47, a $41,000-a-year director of budgets and administration for Amtrak in Washington, D.C., was dismissed and replaced by a man of 28. Says Keane: "I wasn't going to let them get away with it." With the help of his lawyer, Joseph Guerrieri, he sued Amtrak under the 1967 Age Discrimination in Employment Act, which forbids age-based firings of workers between 40 and 70, and won $202,000 in back pay and damages.

Keane is one of thousands who have invoked the act. Detroit Lawyer V. Paul Donnelly, who has nearly 300 such cases pending in 35 states, sees this job struggle as the "civil rights movement of the '80s." Last year the number of complaints cascading into the federal Equal Employment Opportunity Commission (EEOC) doubled, to 8,000; similar state and local agencies probably received another 8,000. Under the federal law, all complainants must start at the EEOC, which tries to solve problems without filing lawsuits. Many, however, are put off by the commission's 4,000-case backlog and its informal system of mediating disputes. They would rather take their fight to court, which they may do once their claim has been at the EEOC for 60 days.

Donnelly considers three factors in deciding whether he can successfully claim age discrimination: the employee's performance, the reasons for his discharge, if any, and the age of his replacement. One Amtrak official now concedes privately that Keane's boss was too "heavyhanded," but he maintains that the reports in Keane's folder gave far too flattering a picture of his capabilities.

Employers, in fact, often have legitimate reasons for letting older workers go. A company might conclude that a management shake-up is essential, or a firm with excessive overhead might decide that some high-salaried executives are expendable. Amtrak Lawyer Page Sharp stresses the risks inherent in executive-level positions. "If you want security," he argues, "you choose union jobs. But for bigger jobs and bigger bucks, you've got to be amenable to being wiped out by new management." When presented with such pragmatic arguments, however, juries tend to identify with the employee's predicament rather than with management's.

Jury trials have been available in most of these cases ever since a 1978 amendment --an especially welcome change to plaintiffs, since many jurors are old.

The law does have a key exception: dismissals may be justified if a certain age level is a bona fide occupational qualification. A television actor, for instance, could become too old to play a middle-aged character in a long-running series. Courts have also upheld age ceilings where public safety is at stake, as in the case of bus drivers. Even in such exceptions, deciding at what age to draw the line is a problem. Dan Williams, a senior attorney at EEOC, predicts that ceilings set by municipalities for police and fire fighters will lead to major legal battles.

Those who win are frequently more interested in returning to their jobs than in collecting a settlement, in part because of the sparse market confronting older workers. After his dismissal, Keane sent out 200 applications and did not get a single offer. He obtained a real estate license, but then high interest rates ruined the housing market. He moved from a five-bedroom house to a three-bedroom apartment and sold the family car, yet still could not keep up with his bills. Nevertheless, like many others in the same situation, what bothers him most is the smear on his record. This week he planned to seek a court order directing Amtrak to reinstate him. "It wasn't right," he says. "I want to be completely vindicated."

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