Ten Miles Square


March 23, 2012 11:57 AM Too Old to Get Hired, Too Young to Retire

By Michael Kinsley

A friend of mine had his name in the paper the other day.

It was an article speculating about who might inherit a prestigious post in the literary world when the current grandee retires. The article said that my friend would have led the list 10 years ago. Ouch! The obvious though unstated implication is that now he’s too old. He just turned 60. He says he already has his dream job and didn’t mind the idea that, because he is 60, some career opportunities have moved beyond his reach. But I mind.

Another friend of mine, whom we’ll call “Nick” (because that’s his name), is doing something about it: He’s suing. Nick grew up in North Dakota and went to Stanford, where he graduated with honors and won a Rhodes Scholarship to Oxford. Unlike Greg Smith, the guy who wrote that already legendary op-ed piece last week about quitting Goldman Sachs, Nick never won any medals in the Jewish Olympics. On the other hand, he never worked for Goldman Sachs, so that’s a wash.

Where was I? Oh yes: So after Oxford, Nick went to Stanford Law School, where he was managing editor of the law review. He clerked for the Supreme Court, won election and re-election as attorney general of North Dakota, served for eight years, then lost a race for governor, went on to practice law and served as chief legal officer of several Fortune 500 companies. Then he decided that he wanted to teach.

Just Two Interviews

If you want to become a law professor, one of the things you have to do is submit your resume (plus a fee) to the Association of American Law Schools. Every fall in Washington, the group holds a conference to recruit faculty, at which law schools interview candidates they are interested in. Just about every accredited American law school participates. Two years ago, of 172 law schools, only two offered Nick an interview, and he already worked part-time at one of them.

He got no job offers. Good heavens, why not? Was he attorney general of too small a state? Did the competition have even more Fortune 500 companies under its belt? Was it that lost race for governor — the only blemish of failure on his record of success?

Nick suspects otherwise, and I suspect he’s right: It’s age discrimination. He was 60 at the time. Now he’s 62. Law schools just do not hire people in their 60s as tenured or tenure-track professors, except for the occasional “adjunct” (temporary) professor moving up or a lateral transfer from another law school faculty.

Imagine how infuriating this must be to an ambitious guy like Nick. Three or four decades ago, law schools were beating down his door. Now they won’t even give him an interview. Meanwhile, the Georgetown University Law Center, for example, hired three people after the 2010 job fair, none of them with Nick’s shimmering credentials.

Of course, every law school will have reasons for a decision not to hire a particular candidate. Georgetown, for example, says the list of subjects Nick wanted to teach didn’t jibe with the subjects it needed to cover. But 172 law schools and not one job offer? It seems beyond reasonable dispute that age discrimination must be involved.

Not everyone will agree about how big an injustice this is. (I mean the behavior of the law schools. The fact that Nick, like many of us, is two years older than he was two years ago is an obvious and devastating injustice, with no remedy.) You may be thinking: “This guy’s a jerk. He’s won life’s lottery again and again. Instead of filing legal documents all about how his credentials are better than everybody else’s, he should be gracious, stand aside, and give some other people a chance at acquiring a bauble or two for their resumes.”

Some Qualms

Well, Nick has been a friend of mine for many years, and he’s not a jerk. He would have made an excellent governor of North Dakota. But I do have qualms about his lonely legal campaign.

I don’t raise this topic easily or happily. I am one year younger than Nick. Of all the forms of discrimination that the law forbids — racial, gender, sexual orientation in some states — age discrimination is the one that nevertheless goes on most brazenly. Corporate recruiters and human resource departments are carefully trained to talk in code, saying that they’re looking for “fresh thinking” or “energy, dedication and willingness to work long hours.” You know what they really mean. Hiring or promotion to top positions in government and private corporations doesn’t even pay lip service to equal opportunity for people over age 60 or so.

Is this necessarily wrong? The Age Discrimination in Employment Act of 1967 begins with a “finding” of “rising productivity and affluence.” These are different times. In today’s zero-sum world, someone who sits on a tenured chair or other sinecure is denying a place to someone else, probably younger. Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?

Of course, Nick Spaeth is entitled to whatever the law entitles him to, irrespective of my qualms or the unusual specifics of his case. But he’s much better off than the blue- collar and white-collar workers whose jobs are actually disappearing. The most severe staff reductions among white- collar workers have come in my own industry, the media.

My literary friend who apparently is 10 years too old for a job now held by an octogenarian may well be telling the truth when he says it wouldn’t interest him anyway. But remaining gracious as the generations shift is harder than I would have expected. Fortunately, we all get a chance to be victimized by this shift — if we’re lucky.

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  • Tired Liberal on March 23, 2012 3:29 PM:

    Age discrimination becomes a more frightening and serious problem as the age of qualification for retirement is bumped ever higher. What is to become of those who are laid off but are deemed "not fresh enough" to be hired at new jobs?

  • bluestatedon on March 24, 2012 7:44 AM:

    I can attest that age discrimination in employment pervades the entirety of the human resources departments at the University of Michigan. My wife's position was eliminated over a year ago with no warning, and since then she has submitted her application for well over forty different positions within the University. The large majority of them do not require any specialized skills, and several have listed these requirements:

    "Special Physical Requirements: Walks and stands throughout the day, lifts/pushes equipment and patients. Verbal, numerical, form perception, motor coordination, color discrimination. Ability to read, write, and follow oral and written directions, general learning ability; ability to catch on or understand instructions and underlying principles, ability to reason and make judgments, adaptable to change in routine."

    Basically, they're looking for a sentient mammal with opposable thumbs, which my two-college-degree holding wife certainly has, but she does not even get an interview for these jobs. She's made it clear she does not expect the same salary as her former position provided, and is willing to work night shifts. She has glowing recommendations from her former supervisor and a number of co-workers, but has gotten a response to her applications in perhaps four of the many positions she has applied for. Given all this, it's clear beyond a shadow of a doubt that her fatal weakness is that she's 59 years old.

    Like any major public institution, the University of Michigan beats its chest loudly about its commitment to equality of opportunity for all Americans, but the stark fact is that age discrimination is alive and thriving on campus. I have no doubt that it's the same on virtually every other campus in the country, public and private.

  • Rich on March 24, 2012 8:52 AM:

    The other problem may be his lack of academic credentials, like publications. Being AG of even a fairly large state probably only matters in that state and perhaps the ones next door. Given that he has a profession and a practice, he's doing far better than the mass of people who face age discrimination---if they're lucky, they live paycheck to paycheck. I've seen numerous examples of this. It's kind of pathetic that someone like Kinsley only writes about this when it touches his rarefied world.

  • Bert Merder on March 24, 2012 10:18 AM:

    While Nick's experience may be unfortunate I was expecting a different story based on the headline: the many folks in their 40s and 50s who are unemployed who aren't finding work. Full disclosure, I'm in this group. I'm certainly in no position to retire, but I suspect that Nick is. I appreciate that Nick wants to work and good for him; given the credentials you mention I'm sure there are opportunities for him. But there are others who need to work and may be victims of some sort of age discrimination that I think is being under-reported. How about some posts on this?

  • Nick (not Spaeth) on March 24, 2012 11:59 AM:

    The other side of this coin is that the profession, and the culture generally, is systematically devouring its own seed corn. Having been through this in academia, I've witnessed the advent of a whole generation of English professors lacking basic knowledge in the language; a textbook industry growing more mediocre with each new edition; and graduating students by the millions unable to write a coherent paragraph. As the kids used to say, what goes around comes around.

  • Jimo on March 24, 2012 12:51 PM:

    Wow. A pity filled piece about how some dude can't find an elite position.

    Why not focus on the millions of 40s, 50s, 60s who are looking for much less? The further along you go on this age spectrum the more likely that a displaced worker is unlikely to land an adequate job.

    Yet our political system still works on the premise that labor markets are largely stable and we can therefore burden workers with the responsibility to provide for themselves. Even the Ryan budget assumes that those as young as 54 can just re-invent their retirement scheme, and double pay (once for those over 55, and once again for themselves). This, despite the fact that many of these people are vulnerable to disruption in their employment status.

    Look, there's nothing wrong with a system of creative destruction that provides greater economic growth in the long run .... as long as part of that growth is earmarked for those whose lives are destroyed in the process (not just left as rents in the hands of those best able to capture growth for themselves).

  • PQuincy on March 24, 2012 2:34 PM:

    A side note here, but since the case involves academia, perhaps not so irrelevant.

    Professors enjoy a particular kind of tenure that is often difficult to achieve (depending on the institution), but also tremendously strong once gained. It used to be that institutions could set a retirement age, but in our wisdom, we have ended mandatory retirement (because that would be 'age discrimination') while retaining the protection of tenure for people forever.

    I've always felt -- [fair notification: I am academically tenured] -- that those enjoying special rights to retain their jobs, aka tenure, should lose that protection above a certain age. Not that they should face mandatory retirement: but tenure should be much weaker for those who can simply take their retirement income, out of fairness.

    It's a credit, on the whole, to the professorial profession, that most of those who don't want to teach and write and research anymore usually _do_ retire, rather than clinging to their positions. But there are clingers, and given the scarcity of professorial positions, their clinging comes at some cost. (There are also the energetically meritorious octegenarians whose experience and wisdom, coupled with ongoing engagement, make them great assets to their universities. But then, they'd be able to fight off forced retirements on substantive grounds and contract law as found in most faculty handbooks, wouldn't they?)

    So, academia is special, and the protection that post-65 or post-70 academics continue to enjoy for their well-paid jobs, even when they barely research or teach any more, doubtless make universities particularly reluctant to take them on unless there's very strong evidence that they will continue as successful teachers. Someone with no academic track record who wants such a job at 60-something represents a real risk, from a Dean's perspective.

  • TCinLA on March 24, 2012 4:21 PM:

    As a writer, I have experienced this for the past 28 years, since I turned 40. Interestingly, most writers don't get really good at the job until about 40. If a writer is an "observer of life" it takes about that long to actually understand what one is observing. So in my business, about the time one is actually worthwhile, one finds oneself cast aside. Not just in screenwriting (my profession). A few years back, when the History Channel actually dealt with "history", I was one of a crew of "experts" headed up by the retired head of a major American historical institution. We were the "talking heads" on many of the programs on that channel, the producers could come to my friend, ask him to provide them people who were knowledgeable, and get them. Then the History Channel was bought by Viacom, and all of a sudden the "suits on the other side of the desk" we dealt with were replaced with really young "suits," all graduates of MTV, the training ground for Viacom's executive ranks. All of a sudden, the decision was made that the shows should appeal to the 18-24 demographic (you know, the ones who can't tell the difference between the Civil War and World War 2 and think Columbus discovered America in 1942). They didn't say anything directly, but all of a sudden they were asking for "talking heads" who were more "relevant to the audience", i.e., they wanted "experts" who were around 30 (such do not exist). Of course, they went on to doing "history" about the truths of Nostradamus and whether the Apocalypse is really coming, so they didn't need us after all.

    I only really know how to do one thing well, and that is write. Fortunately, the Hollywood Legend who first hired me is still working (being an Actual Legend, nobody can get rid of him) and now that the stuff he's doing has to be done for less than before, he has to be sure that the scripts are done right the first time, so many of the writers who started out with him, went on to bigger things, and then ran into media age discrimination - but who still have their talent, now finely-honed - are back doing the scripts for him (for less than the pittance they originally received). For me, e-books are now a godsend, because I can write books that actually interest me without having to convince a publisher that it's good enough to invest $100,000 in, and they do sell. It also helps that I never had a burning need to live in the upper reaches of the food chain, so long as I had the opportunity to do what I like.

    But I look at friends of mine who have lost work because of age, such as a First Assistant Director I always knew I would hire if anyone was ever insane enough to let me direct something, because I knew he'd forgotten more than I would ever know and could save my ass. But now the 28 year olds don't want to have his help because it brings up all their unresolved daddy issues; they'd rather hire their buddies, who know as little about actually doing things as they do, so they can all have fun screwing up together. When I first got into the business, people valued having experienced collaborators because it made them look good in the final product. My writing mentor had a 45-year career and died six weeks after writing "Fade to Black" of the last script he was hired to write. No writer in Hollywood today will ever have that experience.

    There's also the fact that the people now running the show in too many businesses aren't people who actually like what that business does. They're MBA's, who know the price of everything and the value of nothing. You see them running airplane companies where they don't know that the tail hook actually goes on the tail if you're building an airplane to land on a carrier (it's not rocket science, it's been done successfully for 80 years, but the F-35C can't do it now). And having people around who do really know these things is threatening to these little boys. Hence, the situation we are all talking abou

  • John on March 24, 2012 8:41 PM:

    A problem with age discrimination is that it is so hard to prove. Maybe they should make it illegal to ask for your age on an employment application.

    In many cases experience is not valued. Some people are intimidated by experience and smarts and will intentionally hire mediocre people because they can more easily be bossed around. In other cases, experience may not seem to apply. People want to hire a new graduate who will grow into the job. Another problem is the strange way big companies are managed. Upper level managers are responsible for so many groups they don't have time to really be knowledgeable about each one so they manage with relatively crude financial tools; head count, profitability, expense tracking.

  • Kim on March 24, 2012 10:16 PM:

    TCinLA -- Now I know why the History channel has become idiotic, focusing on every silly idea imaginable, but spending very little time with programs on actual history.

  • Walker on March 25, 2012 12:36 AM:

    I agree that age discrimination is a problem. However, the post is conflating this problem with the issue of academic hiring. In my experience, far too many people who rant about the bizarre issues of academic hiring do not actually understand academia. Which means that they cannot possibly function well in academia.

    Academic hiring has always been accomplishments divided by age. Older hires have an extremely high bar. And that bar is the measurement of academia, not the measurement of attorney generals. That means publications and other items that bring prestige to the university and which fit into the educational mission.

    Most importantly, anyone who thinks that tenured or tenure-track positions at a university are just about teaching (often the case with people who say that "now want to teach" later in their careers) has no idea what an academic career entails.

    Shorter: your friend is most likely wasting his time

  • toowearyforoutrage on March 25, 2012 8:51 AM:

    Law schools just do not hire people in their 60s as tenured or tenure-track professors...

    ... Georgetown, for example, says the list of subjects Nick wanted to teach didn't jibe with the subjects it needed to cover...

    ...he should be gracious, stand aside, and give some other people a chance at acquiring a bauble or two for their resumes...

    Can you imagine the kid with 200 grand in student loans even suggesting subject matter he'd like to cover?

    Add in PQuincy's comments about inherent risks of hiring seniors for tenure track and...

    It seems beyond reasonable dispute that age discrimination must be involved.

    Does it?

    To numerous commenters, Old folks are overqualified for most positions so they won't be hired because they'll quit given the chance at a job worthy of them. The solution for age discrimination is to abandon hope of being hired and create companies. No one fires you from your own startup. Given the knowledgebase such startups would launch with, they stand reasonable chance of becoming profitable quickly if they can face the fear of becoming the boss rather than looking for one. It isn't easy, but it may be the only choice when corporate America refuses to pay for experience. They get their money from customers. So cut out the middleman and go get those customers' money yourselves. I'm 44 and I've seen the writing on the wall. I'm fully employed but I'm assuming this will be my last job working for others and have a startup in its fourth year.

  • Anonymous on March 25, 2012 10:50 AM:

    Can you imagine the kid with 200 grand in student loans even suggesting subject matter he'd like to cover?

    Universities are not magical ponies immune to the basics of business. You have a limited number of faculty lines to spend, particularly when talking senior hires (who must be paid more). So those hires must be extremely strategic, and you cannot spread yourself too thin.

    Unless your program is in the top three, you want to be doing everything you can to improve your core areas rather than spread yourself thin in new areas (unless absolutely no other top university is in that area, and so the hire would make you a first mover in that area).

  • neil b on March 25, 2012 5:11 PM:

    @Jimo, "Wow. A pity filled piece about how some dude can't find an elite position.

    Why not focus on the millions of 40s, 50s, 60s who are looking for much less?"
    Because the writer is dorky Brooksianism-infected dweeb Michael Kinsley ...

  • neil b on March 25, 2012 6:48 PM:

    (Mike, you do some good work, but still ...)

  • The New York Crank on April 11, 2012 2:44 PM:

    The same age discrimination problem infests the advertising business, where hardly anyone is over 55, save those doing clerical jobs at the bottom, and perhaps a very senior executive at the top.

    The need for"Fresh ideas," is the same excuse that advertising uses. Yet, if you look at what the twenty-something kids come up with, it's the same juvenile nonsense (the nutty psychiatrist, Frankenstein, talking dogs) that 20-somethings came up with (and had thrown out by their bosses) 40 years ago.

    Age discrimination as presently defined is nearly impossible to prove. Very often you simply can't find the smoking gun. You hear statements like, "Old Joe is fine, but we simply thought Young Bill would be better for the job." Go demonstrate they didn't hire Joe because of his age.

    We need a law that declares a lack of 50-plus employees, particularly at a company that's been around for more than 30 years, is de facto proof of discrimination. I'm not talking about a token 60-something on staff. I mean a significant percentage of the employees.

    That would fix the problem fast.