Discrimination in employment because of age is illegal, as is discrimination on the basis of race, sex, color, religion, national origin, veteran’s status and sexual orientation. The prohibition against discrimination based on age is contained in the Age Discrimination In Employment Act of 1967, which protects older workers (defined in that law as persons over the age of 40) in all aspects of employment: hiring, firing, compensation and workplace environment. The law makes it illegal to discriminate “because of an individual’s age” and it is, thus, per se illegal to hire one singer over another because he or she is younger than the other, or to not hire a singer because he or she is too old.
Illegal or not, age discrimination is a fact of life with which every performing artist must, eventually, contend. When he was 85, Bernard Baruch said, “old age is always 15 years older than I am.” In the mind of many employers, however, old age occurs somewhere between the ages of 35 and 40.
Historically, labor unions have been a dynamic force in the fight to combat illegal workplace discrimination. In the years that followed the passage of the omnibus Civil Rights Act of 1964, AFL–CIO labor unions became aggressive advocates in helping their members enjoy true equality of workplace opportunity, free from the pervasive racism and sexism that had previously often been the rule. In industries where qualifications for employment can be measured by objective standards, unions have been very effective at eliminating many kinds of discrimination. Today, however, one of the last bastions of illegal discrimination is in the performing arts, where concepts of “artistic discretion” and “talent” often mask inappropriate discrimination against older performers.
Exacerbating this situation is the reality that most performers are hired on a freelance basis, in competition with other talented singers, making age discrimination all the more difficult to establish as a matter of law.
Bob Dylan sang, “you don’t need to be a weatherman to know which way the wind blows.” Likewise, you don’t have to work at the Department of the Census or be a social demographer to know that America as a whole is getting older. Through advances in medicine and avoidance of known hazards to life and health, more people are living longer than ever before. But not only are people living longer; they are also living better. Gone are the days when someone at 55 or 60 had almost reached the end of his or her life span, with a concomitant deterioration of the individual’s physical and mental abilities. And as medical research and techniques improve, the numbers of individuals able to carry on productive careers far beyond the age at which they used to be dead is going to keep going up.
Unfortunately, while more and more citizens are enjoying more and more productive years, stereotypes based on age remain prevalent. It is precisely because more of us are living longer that age discrimination is as illegal and as destructive as is discrimination based upon any other non job–related classification.
Unions that represent employees who are hired based on subjective “talent” standards must deal on a daily basis with complaints from their members that employers actively discriminate against older performers. All the Hollywood talent unions recognized this problem years ago and began to create active, ongoing programs to protect their older members, combining aggressive legal advocacy of members’ rights with ongoing contract negotiating efforts to structure viable, new protections for all at–risk categories of members.
I recognize that discrimination poisons the workplace. When I first came to AGMA, I made a commitment to our members that AGMA would do everything possible to fight against illegal and inappropriate discrimination. In addition, AGMA would do whatever was necessary to protect their rights under the law and pursuant to the “No Discrimination” provisions that our collective bargaining agreements already contain.
Because the battle against discrimination is, ultimately, a legal issue, one of my first acts as AGMA’s Executive Director was to restructure our legal support team. First, I retained the New York City firm of Vladeck, Waldman & Elias, generally thought of as one of the world’s preeminent union–side employment discrimination law firms. Their team of attorneys, led by Judy Vladeck & Ann Vladeck, is available to AGMA’s members, without cost, to evaluate every allegation of illegal discrimination and to chart out the best possible course of remedial action.
Additionally, I revamped the legal services being provided to AGMA to make its key attorneys—Bruce Simon (of New York City’s Cohen, Weiss and Simon), Gail Lopez–Henriquez (of Philadelphia’s Freedman and Lorry) and Barbara Hillman (of Chicago’s Cornfield & Feldman)—available to render similar services to members throughout the country.
Bolstered by this team of world–class attorneys, I told AGMA’s general membership to be constantly aware of potential acts of discrimination and to report them to AGMA immediately.
The law decrees that the standards of performance required of singers be equal and demands that each singer must be evaluated as an individual. Classifications among prospective employees based on age are illegal. Every performer knows, however, that different standards are common for performers over 35 or 40. Just knowing that a performer has been discriminated against, however, is not enough. Discrimination must be proven in court, through direct, circumstantial, or statistical evidence.
The first step is to determine whether an employer has actually discriminated against a member because of age. Singers auditioning for jobs must pay close attention to whatever a prospective employer says to them. If an employer uses any words referring to age, the question then becomes whether the words are sufficient to create an inference of an age–motivated decision. Ageist comments made by artistic directors and other executives are always relevant because such comments are evidence of managerial attitudes toward all older workers. Courts judge whether an age reference is “descriptive” or “valuative.” Descriptive references, such as noting the ages of employees under review, create no inference per se of illegal age motivation. Valuative comments suggesting an age preference are direct evidence of an age motive. For example, “The opera is looking for a younger person” is valuative, as is the statement that “older employees have problems adapting to changes and new artistic concepts.” The statement “You’re too old to be Musetta” patently evinces illegal discrimination.
Even valuative remarks, however, may not create an inference that age motivated a particular decision, when for example, they are “stray comments,” or isolated statements, or remote in time or logical connection from the employment decision, such as a generalization that the company needs “younger blood.” But they might convey an employer’s underlying motivation and, thus, every singer must learn to listen attentively, and remember what was said in any discussion with a potential employer.
Absent direct evidence, a performer can still establish a prima facie case of age motivation through circumstantial evidence, such as unexplained disparate treatment of persons of substantially different ages. If a qualified singer over the age of 40 is rejected for a role that is filled by a significantly younger person, or if the older singer is not rehired for a role they’ve successfully performed in the past, while a similarly situated but significantly younger person is hired, this disparate treatment creates a prima facie showing of age motivation.
Evidence of differential treatment places the burden of presenting a “legitimate, non–discriminatory reason” for its action on the employer. Failure to present an age–neutral factor will result in proof of discrimination. Mere denials of age motivation will not suffice. If an employer presents a legitimate, nondiscriminatory reason, the burden shifts back to us to present additional evidence of age motivation and to meet the ultimate burden of convincing a court or a jury that the employer’s decision was motivated by age. These are difficult burdens to sustain, but they are not impossible to satisfy.
Statistical proof can also be used to establish employer discrimination. Examples of similar disparate treatment of older singers can bolster weak direct evidence or suggest in an individual case that the employer’s articulated reason is pretextual. Statistical evidence that demonstrates a pattern of non–selection of older performers can create an inference that all such decisions were motivated by age.
In defense to allegations of age discrimination, opera companies sometimes claim that age is a “bona fide occupational qualification.” The law allows discrimination on the basis of age “where age is a Bona Fide Occupational Qualification reasonably necessary to the normal operation of the particular business.” To establish this defense the employer must prove that it has a factual basis for believing that all or substantially all older singers would be unable to perform safely and efficiently. To establish a case for BFOQ, the employer must be able to prove that having a given characteristic (that is, being young) is essential to doing the job well. The employer must be able to prove that all or almost all job candidates excluded for lacking the same characteristic aren’t able to perform the job safely or efficiently. Not having that characteristic must be the only disqualifying trait among the candidates who were eliminated. If these elements aren’t met, a disqualified job candidate may have grounds for a discrimination lawsuit. Fortunately for us, almost without exception, age is not a bona fide occupational qualification for singers.
So, you’re over 40 and you think that you’ve been discriminated against because of your age. What can you do?
Fortunately, the initial answer is easy: Call AGMA. Discrimination violates both the law and our collective bargaining agreements and it’s our job, our responsibility and our privilege to protect you from that discrimination.
After I talk with you, my next step would probably be to refer you to one of our lawyers. He or she will meet with you and evaluate, based on what you report, whether a probable instance of discrimination has occurred. If it has, together we will advise you what various courses of action are available. Often the best approach is a multi–forum attack, combining AGMA’s commencement of an arbitration under the collective bargaining agreement with the filing of an individual charge against the employer with either the federal or state Equal Employment Opportunity Commission. AGMA has vast archives of employment agreements from which we can draw helpful statistical evidence. Occasionally, ageism will be practiced by a middle–level manager and can be eliminated by talking with the General Director and “raising their consciousness.” When age discrimination is part of an opera company’s overall pattern of conduct, a more forceful approach is necessary. Depending upon the particular facts in any given case, our lawyers determine the best approach and you determine whether you want us to proceed on your behalf. All of these resources are available to AGMA members for nothing more than their basic AGMA dues.
Our legal approach to discrimination is sophisticated and based on practicality. We are, of course, always alert to the possibility of employer retaliation and we work with you continuously to prevent it. Obviously, we want to avoid anything that compromises you or your future in any way.
Discrimination on the basis of age, or any other non job–related factor is not only illegal, it’s reprehensible. No one should be subjected to it, forced to tolerate it, or retaliated against for complaining about it.
The first step in exposing, and resisting, illegal discrimination is to recognize it. The second step is to tell someone. Once you do, we can help you. AGMA members, and potential members, should feel free to contact me at 800–543–AGMA, or by email at AGMANY@aol.com to discuss their concerns on an entirely confidential basis.
