There’s a painful scene in Oliver Stone’s classic 1987 film “Wall Street” where a broker named Dan is fired, supposedly for “not pulling his quota.” Nobody on screen mentions age, but as white-haired Dan stands downcast, we’re meant to understand that he’s considered too old for the job. The message is driven home an instant later, when young star Bud Fox, played by Charlie Sheen, is rewarded with a grand new office.
The scene comes to mind in the wake of headlines about Niels Kirk, a managing director at Citigroup, who sued for age discrimination after his dismissal. A UK appellate panel recently overturned an employment tribunal’s award of ₤2.7 million (about $3.2 million) to Kirk and the case will be reheard. Whatever happens when the case is ultimately decided, the litigation shines a useful spotlight on the way that prejudices about age linger throughout the professions in general — and in finance in particular.
Like the UK and much of the world, the US bans discrimination against older workers. Yet such discrimination seems to be an ingrained part the culture in finance. Although insiders have railed against the trend, bankers in general, and traders in particular, have long complained that a “rampant ageism” forces them into early retirement.
That’s why the March 2020 settlement of an age discrimination suit against PricewaterhouseCoopers is so significant. The amount of money involved — $11.6 million — is trivial, given that after deducting attorney’s fees, the sum was to be divided among some 5,000 individuals. Far more important is PwC’s promise to consider applicants over 40 years old for entry-level positions. This is no small concession. The agreement potentially breaks the link between perception of age and perception of ability. One needn’t be young to be ambitious and hungry.
To be sure, older and younger financial professionals often differ. For example, as bankers age, their tolerance for risk tends to decline. But a greater concern for risk is often a positive quality. Besides, laws against discrimination exist, among other reasons, to prevent the unfair application of averages to individual cases. Yes, we could all tell tales of giants in our respective fields who refuse to admit the waning of their powers. On the other hand, most of us have also been lucky enough to know towering intellects who remain sharp as ever in their eighties and nineties.
Which brings us back to Niels Kirk’s complaint against Citigroup.
The employment tribunal’s original decision against the company rested heavily on evidence that Kirk’s supervisor had referred to him as “old and set in his ways” and emphasized the need for someone more “agile” in his position. One can scarcely imagine a more vicious and hackneyed stereotype. (Kirk’s supervisor denied making the remarks, but the Tribunal found as a fact that he had, and the Employment Appeal Tribunal did not dispute the finding.)
The appellate panel, however, ruled that the tribunal had not taken sufficient account of the fact that although at the time of the events in question Kirk was 55, his replacement was 51, and that a majority of senior bankers in the office were over 50. The panel further instructed the tribunal to consider the evidence that the supervisors perceived Kirk and his replacement as being in the same age bracket.
How can this evidence be relevant if the supervisors nevertheless made the comments Kirk says they did? According to the appellate panel, to call someone “set in his ways” or insufficiently “agile” isn’t necessarily to state a prejudice; a younger worker can manifest the same characteristics. What the panel didn’t mention but perhaps should have is that as with many other biases, researchers have had trouble detecting in the data a significant correlation between holding stereotyped ageist views and discriminating on the basis of age. In the jargon, the prejudices are not always activated.
On the other hand, even taking into account the evidence that the appellate panel said was ignored, the tribunal could still renew its ruling in Kirk’s favor. To see why, imagine an employee who claims he was fired because of his race. The employer replies that the replacement is of the same race. The employee should nevertheless be able to make out a case by showing that members of his race are judged by standards different from those the employer applies to the rest of the workforce.
The difficulties Wall Street and the City have had in diversifying their image as bastions of White maleness are well documented. But ageism is another prejudice that the finance world should battle. And while I won’t venture to guess how the dispute between Citigroup and Kirk will ultimately play out, the case serves as a useful reminder that preferring younger workers to older ones is, quite simply, against the law.
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Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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