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Published Monday, May 29, 2000, in the San Jose Mercury News

Older employees charging age bias by high-tech firms

BY MARGARET STEEN
Mercury News

A lawsuit filed this month against one of the Bay Area's largest
companies -- and its larger-than-life CEO Larry Ellison -- has cast a
spotlight on an issue that many Silicon Valley workers say often goes
unexamined: age discrimination.

Randy Baker, a 55-year-old former executive vice president at Oracle
Corp., is accusing the company, Ellison and top executive Gary Bloom
of age discrimination and wrongful termination after his firing in
February.

``When all this occurred, I was flabbergasted,'' Baker said in an
interview. ``I'm shocked that Oracle would treat any employee in the
way that I was treated.''

Oracle spokeswoman Jennifer Glass said the company categorically
denies Baker's claims and intends to ``mount a vigorous defense in the
case.''

In some respects, the high-level executive's case is unusual. Baker is
requesting $18.5 million in compensatory damages, mostly because he
had to give up significant stock options when he was fired. And his
claim involves other unusual circumstances, such as the fact that he
was fired after announcing that he planned to retire in August.

It could take the courts years to decide whether Baker was a victim of
age discrimination.

But one of Baker's central allegations -- that he was pushed aside to
make way for a younger replacement -- is likely to strike a chord with
many workers who either think they have been victims of age
discrimination or fear they will be.

``The kind of thing that I hear two or three times a week is, `They
sent me a job description and I knew I could do the job. I went in for
the interview, and as soon as they saw my gray hair I saw their jaw
drop and I knew I wasn't going to get that job,' '' said Bill Payson,
president and chief executive officer of the Senior Staff Job
Information Exchange in San Jose, who works with older technology
workers trying to find jobs.

``The older you get, the harder it is.'' he said.

It's hard to pin down who is affected by age bias and to what degree.
Some older workers have thrived in this era of low unemployment. When
older workers do struggle, it can be the result of something more
subtle than overt discrimination.

Even workers who are convinced age bias exists acknowledge that it is
not always easy to distinguish discrimination from legitimate reasons
for firing or not hiring someone.

No significant increases

``It's really difficult to pinpoint the exact reason why someone
doesn't hire you,'' said Robert Marcus, a 62-year-old former
manufacturing worker from San Jose who says he has applied for dozens
of jobs in the past several months and has received just a few
interviews and no job offers. ``They're not specific, and you just
guess.''

It is also difficult to measure just how pervasive age bias is and
whether it is increasing.

``My opinion is that age discrimination is increasing based on the
number of calls I'm getting, the aging of the workforce and the
financial pressures on companies,'' said Steven Cohn, a labor and
civil rights attorney in San Jose.

The number of age-discrimination complaints from the Bay Area to the
local, state and federal governments has not changed significantly in
the past few years. In fiscal year 1999 there were about 450
complaints filed in Santa Clara, San Mateo, San Francisco and Alameda
counties.

These numbers may not tell the whole story, however. It is not
uncommon to hear that people think looking younger will help them get
ahead at work. And to some, the valley's fast-paced, ``work hard, play
hard'' reputation suggests that people who don't want to spend their
after-hours time socializing with co-workers are at a disadvantage.
For many older workers, there's at least the perception that they
aren't getting a fair shake.

``You never get the call if the résumé says you're a senior,'' said
Ralph Bain, a 68-year-old retired software developer in Fremont.

Bain said he wanted to find part-time work after he retired five years
ago but eventually got so discouraged by the lack of response that he
stopped sending out résumés.

``The fact is I've kept up my skills, and I put that in the résumé,''
Bain said. Still, he had almost no interest from the companies he
contacted. ``They say they can't find the people, and of course they
are out there, if they would just figure out some way to employ
them.''

Some indications of the pressure older workers feel in the workplace
are more subtle. Patients at Advanced Aesthetic Dermatology in
Campbell who want wrinkles and other signs of aging removed frequently
list staying competitive in the workplace among their reasons for
wanting to look younger, said physician's assistant Liz Papp.

Potential for more suits

``As a society I think that we do subconsciously prejudge people if
they have wrinkles,'' Papp said.

Issues regarding how companies treat older workers are unlikely to go
away soon. The median age of the working population is projected to
rise as the baby boomers grow older, the retirement age for Social
Security benefits increases and fewer retirees receive traditional
pension payments. With more older employees in the workforce, there
will be the potential for an increasing number of suits like Baker's.

Baker's complaint says he had been promoted to executive vice
president and had been frequently rewarded for his performance at
Oracle since he joined the company in 1993.

But last year, Baker's suit alleges, Ellison made derogatory comments
to Baker about his age, including a comment at one meeting that
``these former Tandem people are old.'' (Baker worked for Tandem
Computers before coming to Oracle.) Soon afterward, Baker was demoted
and told to report to Bloom instead of to the company president. He
told the company he would retire in August. About two months later, he
was replaced by a manager who is about 40. Although Baker still wanted
to stay with the company until his planned retirement date, he was
fired about a week later, on Feb. 7.

``Basically, discarded is the way I felt,'' Baker said. ``Here I was
on call 24 hours a day, seven days a week for seven years, took only
two vacations, performed in an excellent way, and this is the kind of
treatment I get.''

Oracle has not yet filed its official response to the suit.

Difficult to prove

Because there are so many reasons that an employee can lose a job, it
can be difficult to determine whether age discrimination was the
reason and even more difficult to prove it in court. A new state law
gives workers an additional legal tool in age-discrimination cases,
although it may not be relevant to Baker's case. Under the new law,
using salary differences to justify layoffs may constitute age
discrimination if those differences disproportionately affect older
workers.

Beyond the legal questions, observers say, lie a number of reasons
that workers such as Bain, Marcus and others may feel they are at a
disadvantage in the Silicon Valley job market. One big obstacle is the
rapid pace of technological change, which has eliminated some jobs and
changed the requirements for others. Payson said that when he asked
employers why they weren't hiring older technical workers, one of the
main reasons they gave was outdated skills.

Another potential barrier is that rapid changes in the job market can
make it difficult for anyone to know exactly how much their skills are
worth. This means some older workers may be asking for higher salaries
than they can reasonably expect.

Finally, workers who are not looking for full-time careers but instead
want part-time or short-term work in their field may find themselves
at a disadvantage.

Beyond issues of skills, salaries and full time vs. part time,
however, lie murkier areas, such as what Payson described as ``this
ingrained belief that if it isn't new, it's no good.'' One reason
employers gave him for not hiring older workers was that they weren't
receptive to new ideas.

``That is a lot of baloney,'' Payson said. ``I'm 76, and I get a new
idea every day.''
_________________________________________________________________

Contact Margaret Steen at msteen@sjmercury.com or (408) 278-3499.