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An Age-Old Problem

Marina Kolbe may be one of the more over-qualified freelancers ever to file pieces for Georgia Public Broadcasting. She speaks French, Italian and Spanish and is a former anchor and reporter for a bevy of CNN networks. Before moving to CNN, where she worked for seven years, Kolbe was an international news anchor for the Canadian Broadcasting Corp.

Why, then, did a journalist with such an extensive national TV background find herself this year reporting and producing freelance stories for Georgia Business Report? Kolbe says the answer is simple. The 44-year-old committed the unpardonable sin in the television business: being female and not young.

Kolbe, who was born in Italy, grew up in Canada and became a U.S. citizen last year, is suing CNN (and Turner Broadcasting System and Time Warner) for violating the Age Discrimination in Employment Act, among other transgressions, when the company chose not to renew her contract in 2003 and declined to offer her freelance reporting assignments at any of its news outlets. Filed in the U.S. District Court of the Northern District of Georgia two years ago, the suit is still in litigation.

“I want my job back,” says Kolbe, in a phone interview during which she occasionally breaks into tears. Lamenting that many in the generation of women who fought to get into the TV news business in the 1970s and '80s are now at an age when they're being cast aside by employers, she says, “I cannot describe how depressing this has been for me. All your life, you hear about the American dream, and you come here and work hard, and you're 40 and an executive with a company making a good salary, and you've paid all your dues, but you're too old.”

Jon Klein, president, CNN/U.S., declined to comment on Kolbe's lawsuit, noting that he was not at the company when she was working for CNN, CNN International and the now-defunct CNNfn. Klein says age discrimination is not practiced at the network today. (An earlier era at CNN was chronicled last year by former VP for Recruiting and Talent Development Bonnie Anderson in the book News Flash: Journalism, Infotainment and the Bottom-Line Business of Broadcast News. Anderson's own lawsuit against CNN, alleging age discrimination among other complaints—she said she was ordered to hire “younger, more attractive anchors”—was resolved out of court a year ago.)

Statistics would appear to support network executives who say age discrimination is rare in the business. Last year, 17,837 age-discrimination complaints were filed in the U.S. during fiscal year 2004, according to the Equal Employment Opportunity Commission. Of those, 80 claims were in radio and television broadcasting. That's a decline from the 85 filings, out of a total of 19,124, the year before. And this year seems assured of an even bigger drop: With one month left in fiscal 2005, just 39 age-discrimination suits had been filed in the broadcasting category.

But interpretations of those numbers vary. To TV news execs on the local and national level, the stats are proof of the value placed on over-40 employees despite the business' traditional emphasis on youth, particularly for female reporters and anchors who don't have the star power of Barbara Walters or Katie Couric. (Between 1983 and 2002, men's tenure as correspondents on network news averaged eight years, versus five for women, according to a study conducted by Joe Foote, interim dean of the University of Oklahoma's Gaylord College of Journalism & Mass Communication. Of the 30 correspondents who reported during each of those 20 years—a measure of longevity—28 were male.)

Companies Adept at Inoculating Themselves

Others who know the business—current and former TV journalists interviewed for this article, as well as agents and employment lawyers specializing in media cases—say that the decline in complaints reflects a more sobering reality. Anchors and correspondents have realized that filing suit can mean being shunned by potential employers. And companies have become adept at using sensitivity training, employee manuals and Human Resources departments to inoculate themselves against age-discrimination lawsuits.

“In the olden days—the '80s and early '90s—when an age-discrimination case got into the media, you would be inundated with telephone calls” from women with similar complaints, says Jon Howard Rosen, of The Rosen Law Firm in Seattle. “Nowadays, that's just not the case.”

Rosen represented Susan Hutchison, former anchor at KIRO Seattle, who in May settled out of court an age-discrimination lawsuit against the station. She had filed suit against KIRO, its general manager and Cox Broadcasting Inc. in October 2003, saying she was fired the year before and replaced by a significantly younger anchor at a time when the station's ratings were actually going up. After her firing, Hutchison claimed, she could not find other employment in the field. She sought damages for lost wages and benefits; terms of the agreement prevent the parties from discussing it.

“It's All Very Hush-Hush”

Lawyers for several local-news anchors who have filed age-discrimination suits in recent years report that their clients are “doing other things.” Hutchison recently said she's thinking of running for the U.S. Senate from Washington. As for ex-CNNer Anderson, she says that she was unable to find a new TV job; she is now a fishing-boat captain in Puerto Rico.

As in any industry in which networking is the primary means of finding a job, news employees who say they face age discrimination often fear that speaking up will get them blacklisted from positions within their organization or others.

Kolbe says several of her contemporaries who were let go from CNN around the same time as she was accepted severance packages and kept quiet even as younger women were hired soon after. “People take the payoff because they're embarrassed to say they were let go,” she says.

“It's all very hush-hush. People know, if they go public, it's the end of their career,” says Lisa Bloom, a Court TV anchor. A civil-rights attorney with 20 years of experience that includes handling many age-discrimination cases, she is the daughter of prominent feminist and lawyer Gloria Allred. “Most claims are settled confidentially,” Bloom says. “It is sad. I'd like to move toward the day when that's not the case anymore.”

A few female TV journalists have taken their age-discrimination complaints against their former employers all the way to trial and won. Janet Peckinpaugh, former anchor at WFSB Hartford, Conn., was awarded $8.3 million in an age- and sex-discrimination case against Post-Newsweek in 1999. (A judge later halved the amount, and the two parties settled out of court.) Former anchor Sara Lee Kessler won $7 million in an age/sex/religion/disability lawsuit against WWOR New York, also in 1999.

But the pioneer in age-discrimination cases, Christine Craft, ended up losing her discrimination suit against Metromedia in Kansas City in the 1980s. She said she was demoted from anchor to reporter at age 36 after station management told her that focus groups said she was “too old, too unattractive and not deferential enough to men.” Craft's initial, much publicized courtroom victory was later overturned and her appeal rejected by the Supreme Court.

Although companies certainly fight strenuously if cases reach the courtroom, most go to great lengths to ensure that matters don't get that far. The first line of defense is simply to discourage litigation. Media companies, as is common practice in the corporate world now, have instituted measures to minimize their exposure to lawsuits for discriminatory employment practices. One essential step: maintaining meticulous paper trails to indicate that personnel decisions are based strictly on performance. While the records would be vital to any court proceeding, they also send a message to any potentially litigious ex-employees. But if a fired worker does threaten to go to court, many companies quickly settle.

“They factor in the cost of the black eye on their reputation in trying to settle these things,” says Bloom.

Wayne Outten is managing partner of Outten and Golden, a New York employment-law firm that has handled age- discrimination claims involving three major TV networks over the past five years. All were resolved before lawsuits were filed. He says settlements accomplish networks' goals: “The intention is to decrease older women anchors and producers without getting in trouble.”

Another way to avoid litigation is through sensitivity training on discrimination issues. The classes ostensibly educate employees so that discrimination does not occur, but the sessions have the added benefit of providing employers with proof of their good intentions.

“You can overcome a lawsuit by saying in a nutshell, 'We did the best we could here,'” says Stephanie Davis, an attorney who works for Employment Practices Solutions Inc. The 10-year-old company, staffed by former practicing attorneys, offers classes on preventing discrimination and harassment and says major media corporations are among its clients. Business has “increased dramatically” in recent years, Davis says.

With TV news on the national and local level facing precipitous declines in viewership—and the graying of the audience that remains—news operations almost reflexively hire young on-air talent in an effort to lure the young viewers they would like to promise advertisers, according to talent agents. Although middle-aged men have some hope of landing a job, says one veteran agent, “if somebody sends me a tape and they're 50 years old and a woman, they better be extraordinary because I don't see a lot of movement from those people.”

According to the 2000 U.S. Census, the skewing of the journalism profession in favor of men and youth is fairly clear. In the U.S. workforce, 16.7% of employees were age 50-59. But only 12.1% of news analysts, reporters and correspondents were in that age group. Men 50-59 composed 8.9% of the nation's workforce; women 50-59, 7.8%. But among news analysts/ reporters/correspondents, 7.4% were men 50-59, and just 4.7% were women.

Those numbers are for journalists in general, not the more image-conscious TV sector—which is, if anything, becoming even more aware of physical flaws with the spread of high-definition TV.

“You'd Be Shooting Yourself in the Foot”

Even in an HD world, network news executives maintain that they do not discriminate on the basis of age.

“No one should be under the illusion that cable news networks are trying to attract 25-year-olds by putting on 25-year-olds. That would be a foolhardy effort,” Klein says. “Our stock and trade is our authority, experience, trustworthiness and objectivity. Those qualities develop over time, and you'd be shooting yourself in the foot to simply go for youth and looks at the expense of ability.”

CBS News Senior VP Marcy McGinnis says the network is proud of its record. “It's important not to get defensive about hiring people who are going to move through the ranks,” she says. “I don't want all 40-year-olds any more than I want all 30-year-olds or all 70-year-olds.”

Neal Shapiro, who left the NBC News president's job in September, says that, under his stewardship, the network not only didn't discriminate in matters of age but also tried to avoid sending the message to female on-air talent that they were expected to look younger than their years. “I know there are women at other places who feel that way,” he says, “but I hope that's not the case at NBC News.”

Linda Ellerbee isn't so sure. “No one ever said to Walter Cronkite, 'Gee, you're too gray,'” says the ex-NBC News anchor. “And yet these networks seem to believe that the audience won't accept the news from women unless they're young and look good. They might as well just hire ballerinas. Hell, they're used to retiring early.”

Ellerbee, 61, says age discrimination was not a factor in her leaving network news at 41 (her Lucky Duck Productions produces news segments and specials for Nickelodeon, along with overseeing other projects). But the game has changed, she says: “There are lots more networks now, and you have 26-year-olds running them. Unless you own the network, you do have to play by the rules, and the rules are often foolish.”

However difficult the challenges might be for on-air female talent, women's status behind the camera has never been higher. Women now prominently fill jobs as producers, network executives and senior VPs. CBS News' McGinnis points out that her network employs more female senior VPs and VPs than male.

Craft, 60, thinks her famous fight against Metromedia prodded changes in the TV industry—but not enough. “Women at 50 have to have had at least two face-lifts to stay on the air and men only one,” says Craft, now a lawyer and radio host in Sacramento, Calif. “Television news tends to mirror much of what's going on in society in terms of workplace inequities. Progress, yes, but there's still a way to go.”

Kolbe still has a way to go before getting her day in court as her lawsuit against CNN filters through the legal system. “It may kill me. It has killed my career,” she says. “I can at least say I stood up.”