Last week, thousands of Americans who have exhausted their unemployment insurance — the 99ers, named after the maximum number of weeks of state and federal benefits — sent letters and petitions to Washington as part of a futile campaign to convince the Senate to pass a bolstered version of the jobs bill, now stalled and being pared back. There were many common themes in their stories, but one of the more surprising was age.

[Economy1] One woman from Warren County, New Jersey, wrote: “I am (or was) a legal secretary with several years of experience (30+ years). … I have applied to jobs that are more than one-half less than what I was earning. I search for a job each and every day. … Where do people in my age bracket go? Too young not to work but too old to work?”

Such stories of older workers too young for retirement but struggling for months if not years to find jobs have policy experts concerned as the recession drags on and long-term unemployment continues to rise. Experts say that age discrimination is severely compounding the jobs crisis for older workers, although the phenomenon is difficult to quantify or to prove, and remains under-examined by the government. This time, it is not just making it more likely that these workers will be laid off. It is also making it much harder for them to gain new positions.

Last week, a hearing called by the U.S. Commission on Civil Rights examined the issue, attempting to determine whether part of the reason older workers have such trouble finding work, on aggregate, is due to employer biases out of their control. The unemployment rate is a comparatively moderate 7.1 percent for workers over the age of 55 — it’s 9.7 percent nationally — as older workers are more likely to retire early or leave the workforce if they lose their jobs. But that hides the troubling reality for those who can’t afford to leave the labor force.

The unemployment rate for over-55s is at the highest level since 1948. Since the recession started, both the number of older people seeking work and the rate of unemployment for over-55s have increased more sharply than for all other demographic groups. And older workers comprise a high share of the long-term unemployed. In May, the average duration of unemployment for older job-seekers climbed to 44.2 weeks, 11 more weeks than the national average. Nearly six in ten older job-seekers have been out of work for more than six months.

There are structural reasons that the unemployment crisis is hitting older Americans so hard. Older workers are more likely to be underwater homeowners, unable to sell their house and move away. They often have highly specific marketable skills, and seek positions more selectively. They also often have skills rendered obsolete by the recession, in outdated trades. But too often, employers illegally presume that older workers will be harder to train, more likely to leave for other positions, less productive, less technologically able or less willing to move — and do not hire them for those reasons.

Laurie McCann, a senior attorney at the AARP Foundation Litigation and expert on age discrimination, explains that the 1967 Age Discrimination in Employment Act requires employers to assess candidates as individuals and not to make assumptions about their abilities or requirements due to their age. “Employers have legitimate concerns about older applicants,” she says. “But the problem is, we find that people aren’t even getting in the door to have an interview or have their resume looked at, because employers assume that older workers aren’t looking for a job at a lower salary or aren’t willing to relocate.”

Dianna Johnston, assistant legal counsel to the Equal Employment Opportunity Commission, explains that the statistics fail to capture this side of the picture. Speaking before the Commission on Civil Rights, she said, “Most labor-force statistics don’t really tell us much about the labor force. But one does. … Older workers remain unemployed one to three months longer than [younger workers]. And that is partly attributable to discrimination.”

McCann called age discrimination in hiring “the most under-reported form of discrimination” and “prevalent” throughout the recession, as an average of 5 workers compete for every job opening. In an interview, she explained why age discrimination is so hard to quantify: “[It is] the lack of proof. If you’re laid off, you might be in outplacement, and see that everyone who got laid off was older. Or, you might have friends in your office to tell you that a younger person took your job when your employer told you the position was being eliminated. But hiring discrimination is much harder to see, and can be impossible to prove. In most cases, you’re not going to know who was hired. You’re not going to know how they filled the position. There’s just a hunch, or a feeling, that you’re not getting through the door because of your age.”

Incidences of age discrimination in firing are much clearer to see, and have risen along with the recession. The Equal Employment Opportunity Commission says age discrimination cases have jumped 17 percent since the start of the recession, and climbed 30 percent between 2007 and 2008. But virtually all of those cases involve layoffs, rather than the lack of job offers.

Still, evidence of age bias in hiring is accumulating in academic research and anecdotal reports to the EEOC, Commission on Civil Rights and AARP. In one famed 2005 study, a Texas A&M economist sent out 4,000 job applications for entry-level positions. (The resumes were only women’s.) Older workers were 40 percent less likely to receive a response back. And of the letters sent to Congress last week, a vast majority mentioned age, many coming from older workers who had applied for hundreds of positions, to no avail.

“Who will help the over 50 population find work? I have been out of work, laid off from the military/defense industry and apply to anything and everything I am qualified for, but with no luck,” one wrote. “ I am told I am too qualified and when I respond with, ‘I am willing to take this position, take less money, I will give you my experience at that salary,’ I am still turned away.”

Unfortunately, policy experts fear that age discrimination in hiring, compounded by the recession, is a problem without a solution. Individuals can bring cases against individual companies, but discrimination is virtually impossible to prove, even if it is easy to see as an aggregate phenomenon. Plus, McCann says, explains, the phenomenon is so prevalent that discrimination simply seems like reality. “As a society, we’re willing to tolerate age discrimination, more so than other kinds of discrimination,” she argues. “People sense that, and it gives older job-seekers a sense of futility. Why even bother applying for jobs, or bringing a discrimination case? I won’t win.”

In concluding that a plaintiff claiming age discrimination must show not only that age was a motivating factor in the employer’s decision, but the determinative motivating factor, the court is essentially requiring the employee to produce direct evidence that the employer’s action was based only on age. In the past, because employers are careful to hide direct evidence of discriminatory motives, after a plaintiff had provided evidence of age discrimination the burden shifted to the employer to prove its legitimate reason for firing or demoting the older employee.

In this ruling, the high court appears to have just upended the prevailing understanding of employment discrimination law dating back to the case of Price Waterhouse v. Hopkins, a key Supreme Court ruling in 1989, and effectively pronounced that age discrimination is simply less important to remedy than race, gender, ethnic or disability discrimination.

Given how widespread layoffs of older employees are in this economy, the court just substantially undercut the only federal protection those employees have.

Justice John Paul Stevens, in his dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter (yes, another 5-4 decision), called the majority’s opinion “particularly inappropriate” given the “unambiguous history” of courts interpreting the application of the age discrimination law in the same way as other employment discrimination prohibitions.

“I disagree not only with the court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking,” he wrote.

This afternoon, Sen. Patrick Leahy (D-Vt.) also weighed in on the decision with a statement.

“In the Supreme Court’s decision today, five justices acted to disregard precedent and ignore the plain reading and common understanding of the statute that Congress passed to protect Americans from discrimination based on their age,” he said, adding: “By disregarding congressional intent and the time-honored understanding of the statute, a five member majority of the Court has today stripped our most senior American employees of important protections.”