You Want to Work Longer. Will Employers Cooperate?

Working longer offers one of the best paths to improved retirement security. But 50 years after passage of landmark legislation aimed at preventing age bias, our public policy remains out of sync with that goal.

The Age Discrimination in Employment Act of 1967 was part of a broad wave of civil rights legislation that included the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Discrimination based on age was rampant at the time of the law's passage. Back in those days, more than half of private-sector job openings explicitly barred older applicants, and one quarter even refused to look at applicants over age 45. At the same time, employers were free to forcibly retire older employers based on age.

The ADEA made it illegal to "fail or refuse to hire" people due to their age, and prohibited age-related specifications in job postings. In later amendments, the ADEA was expanded to forbid mandatory retirement ages in most situations, and the upper age range of protection was expanded from 65 to 70.

Great progress has been made since ADEA's passage. That is reflected in national employment statistics: in August, 2.3% of workers over age 55 were jobless, compared with the overall national unemployment rate of 4.4%, according to the Bureau of Labor Statistics.

But the jobs data mask underlying problems. Most experts agree the real jobless rate for older workers is much higher, because it doesn't reflect discouraged workers who lost jobs during the Great Recession and subsequently gave up looking for work. The real unemployment figure is more than twice as high, according to research by the Schwartz Center for Economic Policy Analysis at the New School.

Protecting the rights of older workers will only become more important in the years ahead. The country is aging rapidly, which means a larger share of the workforce will be older. Moreover, rising longevity will require more people to at least try to work longer; that will be especially true if efforts in Washington to raise the eligibility age for programs such as Social Security and Medicare are successful.

Bringing an age discrimination lawsuit is expensive and complicated--and courts have been raising the hurdles for successful litigation. Importantly, a 2009 Supreme Court ruling found that plaintiffs must prove that age was the most important reason for dismissal or demotion.

In addition, online application forms and job search engines still discriminate by specifying maximum years of experience accepted for positions, restricting recruitment efforts to college campuses or requiring college-affiliated email addresses for applications. For example, some job postings list being a "digital native" as a requirement, which inherently excludes older workers born before the digital revolution began.

In recent testimony before the U.S. Equal Employment Opportunity Commission, Laurie McCann, a legal expert on the topic at AARP, stated: "In the 50th anniversary year of the enactment of the ADEA, ageism unfortunately remains pervasive in the American labor force. In a 2013 AARP study, nearly two thirds of older workers reported witnessing or experiencing age discrimination in the workplace, a figure that has remained stubbornly persistent."

The EEOC is federal agency that administers and enforces the ADEA. McCann urged that the agency toughen its enforcement of the law, citing statistics showing lower median earnings for workers over age 55, and the prevalence of older workers in minimum wage jobs.

"Both in terms of statutory language, and how that language has been interpreted by the courts, in many respects the ADEA has become a second-class civil rights law, providing older workers far less protection than other civil rights laws," she stated.

McCann urged stronger regulation on job ads, stronger guidance to employers on age-based harassment and more robust enforcement of the ADEA.

The Good News: Tighter Labor Markets But while we wait for those changes--and I'm not holding my breath--older workers will need to act on their own behalf to protect their rights. How real is the risk of age discrimination and what can you do about it?

First, some good news. With unemployment hovering near 4%, some workers have far more leverage in the labor market than they did at the height of the Great Recession, but it depends very much on your industry.

According to a study by the Conference Board, shortages are being felt in many healthcare occupations, skilled trade jobs such as machinists and computer control operators, and in math and science fields like environmental engineering.

"The list of fields where there are shortages is incredibly long," says David DeLong, an expert on critical skills shortage workforce issues and the author of Lost Knowledge: Confronting the Threat of an Aging Workforce. "But it depends very much on your field or profession."

Protecting Yourself Beyond labor markets, vulnerability to age discrimination depends on the relevance and scarcity of your skills, and what DeLong refers to as stability of skills. "Do you work in a field where skills are changing quickly, or being replaced by technology?"

The best protection, he advises, is to never stop learning during the course of your career. And don't develop a sense of entitlement to your position--that your experience speaks for itself and that you deserve to be in your job as a result of it.

"The first mistake older workers make is to start coasting when they have retirement in their sights--they just lay low and do their jobs, and hope not to get hit by the need to learn new technology coming into the field, for example."

Smart older workers will develop a group of informal advisors who can help them stay on track during their later career years. DeLong says it's fine to include people you are close to, such as a spouse, close friend or work colleague,but only if they will give you the straight dope.

"These will be people you can ask for feedback if you're doing something that isn't productive or just something that puts you out of sync with your work culture," DeLong says. "Are you dressing in a way that doesn't fit in? Are you letting yourself go in some way that you’re not even aware of?"

Networks are just as important for job searches.

More than 30% of all new hires last year came through referrals of candidates by current employees, according to one recent study.

"I like to tell job seekers that networking is just one letter away from not working," says Kerry Hannon, a career transition expert and author of Great Jobs for Everyone 50 +: Finding Work That Keeps You Happy and Healthy...and Pays the Bills, which will be out in its second edition in November.

Hannon stresses the importance of finding--or starting--a local networking group for people in your occupation, and attending local events in your field to develop contacts. Also use your LinkedIn, other social media, and alumni connections to broaden your networks.

"Job seekers need to really go wide," she says. "Referrals can come from unlikely networking connections; you might meet someone where you volunteer who knows someone who is hiring or works at an employer that you're interested in working, for instance, or at your daughter's soccer game."

Mark Miller is a retirement columnist and author of The Hard Times Guide to Retirement Security: Practical Strategies for Money, Work, and Living. The views expressed in this article do not necessarily reflect the views of Morningstar.com.