With anger and new laws, older workers fight firings

December 12, 1993|By New York Times News Service

Unemployed after 32 years with Merrill Lynch & Co., 57-year-old James Vincent Rooney has angry words for his former employer, the nation's largest brokerage concern.

"The thing that aggravates me the most is how happy they are to train the young people," he said in a telephone interview from his daughter's home in Pennsylvania.

He moved there in November, a month after selling his home on New York's Staten Island to raise money and 10 months after being abruptly dismissed from his $70,000-a-year position as a computer specialist at Merrill Lynch. His search for another job has proved so frustrating that he said he had given up.

One thing he has not given up on is the law: He is suing the brokerage firm for age discrimination.

Mr. Rooney is among a legion of displaced workers over 40 who, buttressed by amendments to federal equal opportunity laws over the past 25 years, are swiftly elevating age discrimination to a higher and more contentious level on the nation's legal, social and corporate agenda.

Lawyers, corporate executives and the older workers themselves say disputes over age discrimination have become far more frequent and have gained new urgency because of the economic slump and the restructuring of corporate America that has resulted in mass layoffs by hundreds of companies.

While the economy is picking up, one lesson of the recession is that many employers, seeking lower costs and increased productivity through computers and high technology, can get the work they need from a young engineer or business school graduate rather than a company veteran and do so at a far lower salary.

"It doesn't take a rocket scientist to realize demographics are going to drive this issue," said Charles Fried, a law professor at Harvard. Although age discrimination "has not caught the imagination of the academic world in the same way as race and sex discrimination, it is going to be the bread and butter of a lot of lawyers," he said.

Since 1989, when economists say the nation sank into recession, the number of age-discrimination complaints to the federal government has risen steadily each year.

The Equal Employment Opportunity Commission, the federal agency that investigates discrimination in the workplace, said it handled 19,884 of the complaints in the 1993 fiscal year, 32 percent more than in the 1989 fiscal year.

The wave of recent complaints and lawsuits stems in large part from changes in federal law that have all but done away with the concept of "mandatory retirement" in the U.S. workplace.

The principal law, the Age Discrimination in Employment Act, was enacted in 1967. It made it illegal to arbitrarily dismiss workers from ages 40 to 65 on the basis of age.

Amendments since then pushed the age-65 ceiling on the workplace protection higher -- to 70 in 1978. Then, in 1987, the ceiling itself was eliminated. Another change in 1991 eliminated a two-year statute of limitations on age-discrimination lawsuits, giving broad channels of recourse to virtually all middle-aged and elderly workers.

People in only a handful of occupations are exempt from the federal protections, including police, tenured college professors and top-level corporate executives. And even those exemptions are being whittled away -- the law is to be extended to police and professors on Dec. 31.

"The law recognizes that when you are in full command of your faculties and have something to offer, age should not be a factor in employment," said Todd Ryan-Millington of Ossining, N.Y., who may provide a model for the advocates of the rights of older workers.

Mrs. Ryan-Millington, 78, was dismissed in 1990 from her job as office manager in the Manhattan sales office of New Cherokee Corp., a textile manufacturer. Not content to retire, she is boning up on her French and German in the hope of starting a new career as a translator.

She has also won a judgment in her age-discrimination complaint against her former employer. In November, after an investigation of her case and those of two other former New Cherokee workers over 40, the EEOC threatened a federal lawsuit, and the company agreed to pay Mrs. Ryan-Millington $99,000 in an out-of-court settlement.

Although Mrs. Ryan-Millington relied entirely on the federal agency to act on her behalf, many other displaced older workers have turned to private lawyers, making age discrimination a growing area of the law.

"There is a deluge of cases," said Leonard N. Flamm, a Manhattan lawyer who has made age discrimination a specialty. And many of them involve class-action suits in which displaced workers join together as plaintiffs.

That legal strategy is being employed by one of his clients, Sheila Rosen, a 60-year-old Manhattan resident who was dismissed in 1990 as a market research manager after 15 years with a division of the American Home Products Co.

She said she was dismissed abruptly, along with 100 colleagues who were over 40, weeks after the division was acquired by Reckitt & Colman, a British concern.

She said only one of the division's employees who was older than 40 was offered a job by the new owner, while half of those under 40 were offered continued employment.

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