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Don't Tell Them the Clock's Ticking

State high court ruling that some see as discriminatory to older workers defies logic and history, foes say

July 02, 2002|MARY ROURKE and MICHAEL QUINTANILLA | TIMES STAFF WRITERS

Does the name Col. Sanders mean anything to you? How about Famous Amos? Ever hear of him? And what do you remember first about Betty Friedan? These midlife-career switch-hitters exerted a powerful influence on American culture, and all of them were over age 40 when they did it.

Plenty of other people might have slipped into obscurity too, if they had not started over at midlife or beyond. To them, in particular, a California Supreme Court ruling last week must feel like a slap in the face.

The court ruled that employers can decide who will or will not receive certain employee benefits, based on age, without violating state law.

Workers over 40 are protected by law from age discrimination only when it comes to hiring, firing, promoting or suspension, the court said.

The case involved Dan Esberg of Corona who sued his employer, Union Oil Co. of California, after he was turned down at age 56 for company benefits to help finance a master's degree in business administration. He said his supervisor told him, "You're too old to invest in." Three months later, the company granted tuition reimbursement to three younger employees.

What if Col. Harland Sanders, at 65, hadn't walked away from his gas station and cafe in Corbin, Ky., to franchise his fast-food chain, Kentucky Fried Chicken? Where would chocolate-chip cookie lovers be if Wally Amos had stuck to his career as a talent agent instead of opening his first Famous Amos store in Los Angeles when he was pushing 40? And if Betty Friedan had stuck to newspaper reporting at the age of 42 instead of writing her book "The Feminine Mystique" in 1963, just imagine. There might never have been a modern feminist movement.

The court's ruling on age discrimination is "tantamount to saying, 'Let's send whites to graduate school but not blacks,' " bristles Dr. Ed Schneider, dean of the Andrus Gerontology Center at USC. "Racism and sexism are covered under the law. What about ageism?"

George Shannon gave up a 30-year acting career to pursue a doctorate in the USC gerontology program. "I found the ruling appalling," says Shannon, 62.

"There has been a trend for older workers to return to school and find new opportunities in the workplace," he says. "This ruling is contrary and counter to that." He is financing his own schooling, but it's the principle of the ruling that irks him.

Michael Sawyer, 50, who received his master's degree two months ago from USC, says the ruling opens the door for corporate America "to take a calculator to an employee's age and say, 'Well, he's 55 right now, and he won't be with us at 62, so why should we invest in this person's education?' They're just shooting themselves in the foot. It's the brain trust that employers should value.

"Companies should see the benefit of higher education at any age," says Sawyer, whose employer, Southern California Presbyterian Homes, based in Glendale, paid for his $25,000 graduate education.

Grace O'Brien, 75, put herself through college later in life after a career with Delta Airlines. Workers who can't afford continuing education without help from their employers are the hardest hit by the new ruling, she says. For older workers to be refused tuition reimbursement "implies that you can't be a productive person after a certain age," says O'Brien, who now does public speaking about the aging experience and writes poetry. A lot of older adults have more to give in the way of creativity, productivity and not the least important, loyalty, she says.

Statistics bear her out. Business analyst Roger Selbert of Santa Monica, who edits and publishes a newsletter called Growth Strategies, compiled a trend report featuring older workers for his June issue. He reports that workers over age 50 tend to remain with their companies until retirement while younger employees are likely to move around. For employers, that amounts to a better return on their training investment.

Selbert also reports that workers in their 50s and older take fewer days off for illness and personal or family problems. They have more training and experience than their younger counterparts. Despite these findings, ageism has spread, he says. "It used to be that discrimination was against workers in their 50s. Now it's workers in their 40s."

"Why put an age cap on learning?" asks UC Irvine professor Judy B. Rosener, 72, who joined the graduate school of management there 20 years ago. She earned her PhD at age 50. "There is all kinds of data to indicate that older people are returning to higher education and working a lot longer," she argues.

Shocked as she was by last week's ruling, Rosener doesn't dispute the logic.

"If I was sitting on the California Supreme Court I'd have to rule the same way," she says. The existing rule concerning employment practice fails to include a reference to "age" in its list of protected categories. A person can't be discriminated against based on race, religion, creed, national origin, ancestry, physical or mental disabilities, medical condition, marital status, sex or sexual orientation. But age is apparently acceptable. "The first remedy is to change the law," says Rosener. "Get the Legislature to amend it."

Assemblywoman Gloria Negrete McLeod (D-Chino), 61, has introduced a bill to protect older workers from age discrimination in relation to employee benefits such as tuition reimbursement, compensation, vacations and stock options.

"This is new territory," says Fernando Torres-Gil, director of the UCLA Center for Policy Research on Aging. "The courts are engaged in very murky human concerns where there are no easy answers, and we have to make it up as we go along."

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