Age discrimination occurs when individuals are treated differently because of their chronological age. Children and youth are routinely treated differently than adults. They are required by law to attend school and denied the legal right to vote, drink alcohol, and work. This type of age discrimination is justified because of children's immaturity. Although people debate the chronological age that should be used to define adult status, few question the desirability of treating children differently than adults. Chronological age also is used to discriminate in favor of older people. Old age often entitles people to reduced taxes and discounts on drugs, admission fees, or bus and airline tickets. Medicare provides older people with national health insurance and Supplemental Social Security provides a guaranteed minimum income for older people. Discussions of age discrimination, however, seldom focus on the restrictions of children's rights or special privileges for older people. Rather, the primary concern of age discrimination involves situations where older people are treated in unfair and negative ways because of their advanced age. The following discussion focuses on the two most widely recognized areas of discrimination against the old—in employment and health care—but also addresses discrimination in driving laws and interpersonal interactions.
Employment and the ADEA
In 1967, three years after it enacted the Civil Rights Act prohibiting workplace discrimination on the basis of race, color, national origin, religion, or sex, the U.S. Congress passed the Age Discrimination in Employment Act (ADEA). This law and its amendments made it unlawful for employers of more than twenty workers to discriminate against a person past age forty because of his/her age. The ADEA of 1967 protected employees between ages forty and sixty-five against workplace discrimination in such areas as hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The Department of Labor initially enforced the law, but in 1978 enforcement authority was transferred to the Equal Employment Opportunities Commission (EEOC), the agency responsible for overseeing other federal laws against discrimination in the workplace. The 1978 ADEA amendment prohibited mandatory retirement or other forms of age discrimination before age seventy (instead of sixty-five). The rather obvious illogic of allowing discrimination at chronological age seventy but not at sixty-nine was corrected in 1986 when ADEA was extended to cover all ages past forty. Several occupation-specific exceptions to the ADEA protection are permitted, so that commercial airline pilots, air-traffic controllers, and public safety officers may be required to retire at set ages (fifty-five or sixty). Despite a court challenge by pilots, the Supreme Court in 1998 left intact the Federal Aviation Administration regulation requiring retirement at age sixty. In 1990, Congress again amended the ADEA with passage of The Older Workers Benefit Protection Act (OWBPA). This legislation addressed concerns that businesses were subtly practicing age discrimination by offering early retirement incentive programs (ERIPs) to entice older, high salary workers to leave voluntarily. The OWBPA set conditions that ERIPs must meet to avoid being challenged as age discriminatory and established minimum standards that employers must meet to request that employees voluntarily agree to waive their rights or claims under the ADEA.
The ADEA legislation responded to employers' rampant and blatant discrimination against older people. Before this legislation it was common for employers to include age restrictions in help wanted advertising (e.g., soliciting applicants under thirty-five) and to require workers to retire at a fixed chronological age (e.g., sixty-five). Passage of a law forbidding discrimination on the basis of age, however, has not eliminated age discrimination. To be sure, age discrimination now tends to be less overt than it was before the ADEA. Nevertheless, throughout the 1990s an average of more than fifteen thousand charges of age discrimination were filed annually with the EEOC. The actual number of instances of age discrimination, however, is estimated to be many times larger. Although employers routinely favor hiring younger applicants over older ones (past age forty), formal charges of this type of discrimination are uncommon. Furthermore, approximately 90 percent of all age discrimination charges are settled before official complaints are filed.
The starting point for an individual who believes that his or her employment rights have been violated is to file a charge of discrimination with the EEOC (or with a state fair employment practices agency if a state age discrimination law exists). Until a charge has been filed with the EEOC, a private lawsuit charging violation of rights granted by the ADEA cannot be filed in court. Once filed, the EEOC can handle age discrimination charges in a number of ways: it can provide mediation, seek to settle the charges if both parties agree, investigate a charge and dismiss it, or investigate and establish that discrimination did occur. When it establishes that discrimination occurred, the EEOC will attempt conciliation with the employer to remedy the situation. If unable to conciliate the case successfully, the EEOC has the option of bringing suit in federal court or of closing the case and giving the charging party the option of filing a lawsuit on his or her own behalf.
Because enforcement of the ADEA raises many complicated issues, a number of court decisions have tried to define its reach. A complete history of legal battles cannot be given here, but two Supreme Court rulings illustrate the types of issues that arise. First, the Supreme Court decision in January 2000 in Kimel v. Florida Board of Regents dealt with the constitutional issue of whether or not the federal legislation applied to state governments. Kimel had charged that Florida State University violated the ADEA by discriminating against older workers in making pay adjustments. The Supreme Court ruled that the ADEA did not apply to state government employees, so Kimel could not sue the state in federal court. A few months later, in June 2000, the Supreme Court decision in Roger Reeves v. Sanderson Plumbing Products, Inc. established that direct evidence of intention to discriminate was not required to convict an employer of age discrimination. The Court held that it is adequate to establish that the employer's stated reason for the action was untrue and that prima facie evidence, such as managers' ageist comments, suggest discrimination. The first ruling restricted the reach of the ADEA, but the second one made it easier for employees to win discrimination cases against their employers.
The occurrence of age discrimination in the workplace depends both on the demand for labor in the marketplace and employers' perceptions of older people's competence. A tight labor market, for example, discourages employers from practicing age discrimination. Several studies have examined management attitudes toward older workers. An AARP-funded survey interviewed senior human resource executives in four hundred companies in 1989, and Louis Harris and Associates interviewed over four hundred senior human resource managers in a 1992 survey. Both of these studies, as well as earlier ones, found that despite generally positive attitudes expressed toward older workers by the "gatekeepers" of employment, two areas of concern were widespread. First, there was a pervasive perception that older workers were more costly because of health care, pensions, and other fringe benefits. The perceived and real costs of providing benefits can serve as an economic incentive to discriminate against older workers. Second, there was a widespread perception of older workers as less flexible, less technically competent, and less suitable for training. Studies of older workers tend to refute the stereotypical view that they are less productive than younger workers. Although some physical and mental capacities decline with age (e.g., speed and reaction time), these changes tend to be small until advanced ages and may be compensated for by greater experience. At every age there is wide diversity of abilities and learning potential, so basing employment decisions on job-related criteria rather than arbitrary and misconceived notions about age is a fairer and more efficient use of people's skills.
Since the 1960s much effort has gone into protecting older workers' rights. Despite the failure of this legislation and litigation to end all unfair treatment of older people in the workplace, this issue has received far more attention in the United States than in Japan and most European countries where blatant age discrimination in employment is still accepted.
Older patients in the health care system
In the world of medicine, older people are routinely treated differently than younger people. Older patients tend to receive less aggressive medical treatment than younger patients with the same symptoms. A 1996 study, for example, found that older women are less likely to receive radiation and chemotherapy after breast cancer surgery, even though they are more likely than younger women to die from the disease. In 1997 the U.S. General Accounting Office reported to Congress that most of the Medicare beneficiaries diagnosed with diabetes are not receiving the recommended blood tests, physical exams, and other screening services to monitor the disease. Although anticlotting therapy has been shown to reduce the risk of death among heart attack patients, older patients are less likely than younger patients to receive this treatment. Patients over age seventy-five are more likely than younger patients with the same severity of illness to have donot-resuscitate orders in intensive care units. Older patients are also undertreated for mental health services, preventive care, rehabilitative services, and primary care.
Several factors contribute to the discrimination older people face in the health care system. First, many health professionals adhere to the traditional view of aging as a continual process of decline. Unaware of the distinction between processes of normal aging and disease, they frequently dismiss older patients' complaints and symptoms. Physicians, for example, may write off older adults' symptoms of depression as part of the normal aging process and therefore fail to refer them for psychiatric assessments. Furthermore, doctors often prefer using their skills to cure acute illnesses rather than managing chronic diseases and rehabilitation. Because chronic conditions are much more common among the old than the young, physicians trained to focus on discrete causes of diseases and their cures may ignore the opportunity to intervene and improve older patients' quality of life.
Robert Butler has criticized the medical profession for not investing more research into the chronic diseases of older persons. Chronic conditions that slowly and permanently reduce older people's physical functioning may be less spectacular than acute conditions, but they are more far-reaching than the diseases that have been more intensively researched. Older adults have been poorly represented in other medical research and funding priorities as well. Few research studies, for example, definitively show that specific treatments are beneficial to older patients. Without the empirical evidence of treatments' effectiveness on older adults, physicians may not prescribe certain interventions.
Poor communication between patient and doctor is another contributor to the undertreatment of older adults. Research has shown that doctors are more responsive, egalitarian, patient, respectful, and optimistic with younger patients than with older patients. Communication problems also arise because older patients are more likely to be passive and accept their physicians' diagnoses without question.
Finally, educational institutions contribute to biases against older people in the health care system. Although treating the elderly, especially the very old, can be remarkably different from treating younger patients, medical students are rarely trained to handle the multiple and complex medical problems of older adults. One study, for example, found that the average physician's knowledge of aging was equivalent to that of college undergraduates (West and Levy). As a result, there is a critical shortage of geriatricians, or doctors specially trained to deal with older adults' unique health problems. Further, textbooks that focus almost exclusively on problems of aging and underreport successes expose students to narrow views of the aging process.
The aging of the population will likely compound these problems in the coming decades as the numbers of people needing acute and long-term care increase dramatically. Older Americans comprise less than 13 percent of the U.S. population but account for about one-third of health care expenditures every year. One of the central questions facing the United States is how the health care system will handle a growing elderly population. One proposal addressing this challenge would limit health care provided to people above a certain age. Philosopher Daniel Callahan, for example, argued in his controversial 1987 book Setting Limits that the very old should not receive expensive health care services. Former Colorado governor Richard Lamm went even further in his oft-quoted statement that older persons "have a duty to die and get out of the way." Although few Americans would withhold health care to someone solely on the basis of age, there are many supporters of preferentially allocating medical services to younger patients. They view health care as a limited resource that must be allocated to achieve the greatest good for the greatest number of people. Proponents of age-based rationing argue that chronological age is an ethical, objective, and cost-effective criterion for allocating health care because older people have already enjoyed life and have less life to enjoy. The greatest challenge to age-based rationing of health care, however, is that there is no necessary correlation between age and physical health. Everyone does not age at the same rate, making age-based rationing of health care a prime example of discrimination against older adults.
Age discrimination is also evident in attempts to restrict older adults' driving. Although most older people are safe drivers, elderly persons are involved in more fatal crashes per miles driven than all but the youngest, most inexperienced drivers. Drivers eighty-five or over are more than ten times as likely to die in a crash than are drivers between the age of forty to forty-nine. Over the next several decades the number of older drivers is expected to double and the number of elderly traffic fatalities is predicted to triple. Concern that older drivers pose a risk to themselves and others leads some politicians to propose ending driving privileges at a set age, such as seventy-five or eighty-five. More common, however, are proposals to treat the licensing of older drivers differently. At least twelve states and the District of Columbia already do this, requiring older drivers to have more frequent vision tests and license renewals. A 1999 Missouri law uses ability rather than age to identify those who are at high risk of being involved in accidents. This law has drawn wide support because it acknowledges that using chronological age to restrict people's options ignores the diversity of older people's individual capabilities.
Interpersonal interactions and social segregation
Many older adults experience subtle forms of age discrimination when they interact with others. Older people in American culture are often devalued, avoided, and excluded from everyday activities. They may be segregated from children and younger adults and overlooked as candidates for useful work, either paid or unpaid. The role losses that typically accompany old age reduce older adults' social contacts and recognition. Older persons, for example, are sometimes excluded from family conversations or addressed in a patronizing manner. Religious institutions worried about attracting young people often neglect older members' needs. Churches and synagogues rarely structure their programs, budgets, and services to permit all age groups to participate equally. Older adults are also spatially segregated from other age groups in nursing homes and retirement communities. Even organizations that attempt to counter older adults' social rejection further serve to isolate them in seniors' centers and clubs. Thus, age discrimination functions not only blatantly in employment, health care, and driving laws, but also subtly in interpersonal relationships.
Prejudice and stereotyping lead to age discrimination that can affect everyone. It disadvantages older workers, resulting in an ineffective use of human resources. Ageist beliefs influence health care providers' professional training and service delivery, which in turn negatively affect older patients' treatment and health outcomes. Narrow views of aging lead people to ignore substantial differences among older adults' driving abilities and to underappreciate their social needs. Ongoing education is needed to inform those in power that age is a poor predictor of performance and ability and should not be a basis of discrimination.
Peter Uhlenburg Jenifer Hamil-Luker
See also Age-Based Rationing of Health Care; Ageism; Age Integration and Age Segregation; Driving Ability; Job Performance.
Administration on Aging. Mobility and Independence: Changes and Challenges for Older Drivers. Available on the Internet, www.aoa.dhhs.gov
American Association for Retired Persons. Business and Older Workers: Current Perceptions and New Directions for the 1990's. Washington, D.C.: AARP, 1989.
Butler, R. "Dispelling Ageism: The Cross-Cutting Intervention." Annals of the American Academy of Political and Social Sciences 503 (1989): 138–147.
Callahan, D. Setting Limits: Medical Goals in an Aging Society. New York: Simon and Schuster, 1986.
Crown, W. H., ed. Handbook on Employment and the Elderly. Westport, Conn.: Greenwood Press, 1996.
Falk, U. A., and Falk, G. Ageism, the Aged and Aging in America. Springfield, Ill.: Charles C. Thomas Publisher, Ltd., 1997.
Goldberg, B. Age Works: What Corporate America Must Do to Survive the Graying of the Workforce. New York: The Free Press, 2000.
Graves, J. "Age Discrimination: Developments and Trends." Trial 35 (February 1999): 58–63.
Massie, D.; Campbell, K.; and Williams, A. "Traffic Accident Involvement Rates by Driver Age and Gender." Accident Analysis and Prevention 27 (1995): 73–87.
Mirvis, P. H. Building the Competitive Workforce. New York: John Wiley and Sons, 1993.
Rubenstein, L.; Marmor, T.; Stone, R.; Moon, M.; and Harootyan, L. "Medicare: Challenges and Future Directions in a Changing Health Care Environment." The Gerontologist 35 (1994): 620–627.
Shaw, A. B. "In Defense of Ageism." Journal of Medical Ethics 20 (1994): 188–191.
West, H. L., and Levy, W. J. "Knowledge of Aging in the Medical Profession." Gerontology and Geriatric Education 4 (1985): 97–105.
Zweibel, N. R.; Cassel, C. K.; and Karrison, T. "Public Attitudes About the Use of Chronological Age as a Criterion for Allocating Health Care Resources." The Gerontologist (1993): 74–80.
Age discrimination is the practice of letting a person's age unfairly become a factor when deciding who receives a new job, a promotion, or other job benefit. It most commonly affects older workers who feel they have been discriminated against in favor of younger workers, but there have been cases involving younger workers being displaced by older workers. A 2005 survey of 2,600 human resource professionals and managers, published jointly by the Chartered Institute of Personnel and Development and the Chartered Management Institute, found that 60 percent of the respondents claimed to have experienced some form of age-related discrimination. However, the survey also showed that much progress has been made over the last decade on reducing age-related discrimination. The number of respondents in the survey who reported having been passed over for promotion based on age dropped by 50 percent since the same question was asked in the 1995 survey.
One factor that may be involved in the changing perception of age-related discrimination is the changing demographic picture of the U.S. workforce. "With 76 million baby boomers approaching retirement age, retaining older workers is not so much a choice as a necessity," explains Alicia Barker, vice president of human resources for the firm Hudson North America. She discusses, in an article entitled "Age Discrimination Visible, But U.S. Businesses Urge Older Workers to Stay on the Job," the need for companies to establish policies that encourage older workers to stay on the job. The need for such policies is not only in order to avoid costly discrimination lawsuits but also by way of preparing for the coming shift in the labor force that will occur as baby boomers retire.
Age discrimination has officially been a major employment issue since 1967, when the U.S. government passed the Age Discrimination in Employment Act (ADEA). The act's stated purpose is "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." Specifically, the act prevents employees over the age of 40 from being unfairly fired, demoted, or offered reduced pay or benefits, and it makes it illegal to discriminate against a person on the basis of age in regard to any employment benefits. Older and younger workers must receive access to equal benefits, which generally include: the same payment options; the same type of benefits, such as health care and pension; and the same amount of benefits. The ADEA applies to companies with more than 20 employees that are "engaged in industry affecting commerce." Only true employees are covered; independent contractors are not.
There are exceptions to these rules, but they are few in number and closely monitored. For example, companies are allowed to offer early retirement incentives to older workers without penalty. But the early retirement benefits can only be offered if participation in the plan is voluntary and all other parts of the plan are nondiscriminatory. A company cannot force its workers to accept an early retirement offer, nor can it offer an early retirement plan that reduces benefits as a worker's age increases.
There are also some exemptions regarding the employees who are covered. Jobs that involve public safety, such as police and firefighters, are allowed to have age restriction clauses. Top-level executives who meet certain criteria are excluded from the ADEA. In addition, a company may still utilize an official seniority system, which has long been an accepted practice in the American workplace. The ADEA has strict rules about how a seniority system is to be administered, however, and requires that such systems include merit factors as well as years of employment as determining factors. Finally, if faced with an age discrimination suit, employers may argue that the job in question had a "bona fide occupation qualification (BFOQ)" that required a younger worker. If challenged in court, the company must prove that the BFOQ was legitimate and not just a ruse to skirt the law. Generally, this means proving that all people above the age limit for the position can be shown to be inappropriate for the job. This is extremely difficult to prove, so most companies do not try to challenge the ADEA in this manner.
Employers must prominently display notices about the ADEA and the protection it offers older workers. They must also maintain detailed records as required by the Equal Employment Opportunity Commission (EEOC), which can take action against an employer if it feels discrimination has occurred. Individuals may also file civil suits on their own. The plaintiff may sue to recover back pay, front pay, and liquidated damages from the employer. If an employee proves that the age discrimination was "willful," then back pay damages are doubled. State laws also permit punitive damages to be assessed, which can add millions of dollars to a judgement. To prove his or her case, the plaintiff can present direct evidence of discrimination (such as when the person was plainly told they were being fired because they are too old for the job), prove that a pattern of discrimination exists through the use of statistical analysis, or provide circumstantial evidence that discrimination occurred.
Since it was first written, the ADEA has been updated a number of times. The Older Workers Benefit Protection Act was passed in October 1990. Among its provisions were clear requirements that had to be met if a company wished to settle an ADEA lawsuit brought by an employee. The employee must sign a waiver releasing his or her claim. The waiver must:
- Be "knowing and voluntary," meaning that it must be in writing
- Refer to the specific portions of the ADEA that were applicable to this case
- Provide the employee with some form of compensation, or "consideration," over and above what he or she would have normally received if they had not signed the waiver
- Recommend, in writing, that the employee has the right to consult an attorney
- Indicate that the employee has 21 days to sign the waiver
- Be revocable for seven days after being signed by the employee
- Make certain information available to the employee if the case involves employment termination
While not a direct update of the ADEA, a 1993 court case has proven to be extremely important in the field of age discrimination. In Hazen Paper Co. v. Biggins, the U.S. Supreme Court ruled that, even though a decision by the paper company adversely affected older workers more than younger workers, the decision did not constitute age discrimination. In the case in question, the company claimed that money was the basis for its decision, not the age of the employees affected, and the court accepted its defense. In cases since that time, the "cost, not age" defense has been widely accepted by the courts.
WHO IS PROTECTED
Recent court rulings have affirmed the idea that retirees are also protected from age discrimination. A recent Supreme Court case called Robinson v. Shell Oil Co. that was primarily about race issues determined that "employee benefits" encompass benefits provided to a company's current employees and to its retirees. As a result, there have been more court cases involving retirees and age discrimination under the ADEA's equal cost or equal benefit provisions. In the case Erie County Retirees Association v. County of Erie, the U.S. Third Circuit court ruled that, while companies could continue the common practice of reducing company-provided medical benefits once a retiree qualified for Medicare medical benefits, the companies had to follow the equal cost, equal benefit standards and could not reduce the benefits more than those standards allowed. Employers are also barred by the ADEA from retaliating against employees who have participated in ADEA litigation against the company in any way, be it filing a claim themselves or testifying at someone else's trial.
One of the tools an employee can use to prove age discrimination is through comments made at the workplace. These comments, under certain circumstances, can come from the employee's supervisor, other management personnel, co-workers, or even the company's chief executive officer. Comments that are directly related to the job and the employee in question and that show bias are always admissible in court, while other comments face different qualifying standards. Comments from the CEO are almost always allowed because they are indicative of the company's official policy. Remarks made by senior managers and other employees, even if they are a year older or more, can be admissible if they indicate that a pattern of bias is present in the corporate culture.
THE CURRENT STATE OF AGE DISCRIMINATION LAW
In 2000, the U.S. Supreme Court made two important rulings that extended the scope of the ADEA. In Reeves v. Sanderson Plumbing Products, Inc., the plumbing company fired an employee who had been with the firm for 40 years, citing one reason for the firing that turned out to be not true. The employee sued, saying that the false reason offered was really just a pretext for the real reason—that the company wanted a younger worker. A jury agreed with the employee, but an appeals court overruled the jury, stating that the employee had to offer additional proof that he was discriminated against—just proving that the company lied about why they fired him was not enough to prove age discrimination. The U.S. Supreme Court disagreed, reinstating the original verdict that the employee was discriminated against. The court ruled that all the employee had to do to prove discrimination was prove that the company's original reason for firing him was false. He did not have to provide "pretext plus," as the rule requiring additional evidence of discrimination was called.
An even more significant case was Kimel v. Florida Board of Regents, in which the court sided with the employers. In the Kimel case, the court ruled by a 5-4 vote that under the 11th Amendment to the Constitution, state governments were shielded from age discrimination suits. In other words, no state employee could sue his employer for age discrimination. This does not totally wipe out an older employee's right to seek recourse, but it does make it tougher for employees. Every state has its own laws making age discrimination illegal, and employees may still take action under those state laws. But each state law is different and, in general, not as tough as federal laws.
In March 2005, the U.S. Supreme Court's decision in the case Smith v. City of Jackson, Mississippi, answered an important question: Must a plaintiff prove discriminatory intent or is proof of disparate impact enough? The ruling in this case, although in favor of the defendant (the employer), was a victory for civil rights plaintiffs. The ruling laid out a rationale by which disparate impact may be used in cases brought under the ADEA, supporting the use of disparate impact as an alternative to employer intent. The requirement that a plaintiff prove that there was discriminatory intent on the part of an employer, when bringing a discrimination case under the ADEA, has long been an obstacle for plaintiffs. The decision in Smith v. City of Jackson, Mississippi reduces the obstacle and clears the way for claims that rest on proof that there was a disparate impact on older employees regardless of the employer's intentions. The practical reality is that it is much easier for a plaintiff to prove disparate impact than discriminatory intent.
The ruling in Smith v. City of Jackson, Mississippi highlights the need for employers to establish strong anti-discrimination policies and to have demonstrated business reasons for employment decisions that may adversely affect older workers.
"Age Discrimination: Past, Present, Prologue." Trial. December 2000.
"Age Discrimination Visible, but U.S. Businesses Urge Older Workers to Stay on the frob." PR Newswire, 16 November 2005.
"Aging Angst." Association Management. November 2000.
Chemerinsky, Erwin. "Age Discrimination Claims Get Boost from the Court." Trial. July 2005.
Spero, Donal J. "An Overview of the Age Discrimination in Employment Act." Florida Mediation Group, 27 September 2000.Available from http://www.floridamediationgroup.com/articles/ADEA.html.
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Hillstrom, Northern Lights
updated by Magee, ECDI
Age Discrimination in Employment Act
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA) prohibits any employer from refusing to hire, discharge, or otherwise discriminate against any individual because of age. The act covers compensation, terms, conditions and other privileges of employment including health care benefits. This act specifically prohibits age-based discrimination against employees who are at least 40 years of age. The purpose of the act is to promote the employment of older persons and to prohibit any arbitrary age discrimination in employment.
The Age Discrimination in Employment Act became law in 1967 but its roots can be traced back to 1964, when the U.S. government enacted Title VII of the 1964 Civil Rights Act. This act radically changed working life in the United States. The core of Title VII was to prohibit discrimination in employment based on race, color, sex, national origin, or religion. This statute provided a way for women and minorities, in particular, to challenge barriers that limited equal opportunities in organizations. States adopted similar legislation as well. One variable noticeably missing from Title VII was age discrimination. Three years later, the U.S. Senate and the House of Representatives enacted the 1967 Age Discrimination in Employment Act (ADEA).
SCOPE OF COVERAGE
The ADEA covers individuals, partnerships, labor organizations and employment agencies, and corporations that: 1) engage in an industry affecting interstate commerce and 2) employ at least 20 individuals. The act also controls state and local governments. Referrals by an employment agency to a covered employer are within the ADEA's scope regardless of the agency's size. In addition, the ADEA covers labor union practices affecting union members; usually, unions with at least 25 members are covered. The ADEA protects against age discrimination in many employment contexts, including hiring, firing, pay scales, job assignments, and fringe benefits.
Under the act, employers are forbidden to refuse to hire, to discharge, or to discriminate against anyone with respect to the terms, conditions, or privileges of employment because of a person's age. The act also forbids employers from limiting, segregating, or classifying an individual in a way that adversely affects his or her employment because of age. The act states that all job requirements must be truly job-related and forbids employers to reduce the wage rate of an employee to comply with the act. It forbids seniority systems or benefits plans that call for involuntary requirements due to age and also makes it illegal for employees to indicate any issue related to age in advertisements for job opportunities.
The ADEA was enacted to promote the employment of older persons based on ability rather than age and to help employers and employees find ways to work around problems that arise from the impact of age on employment. As a result, the act authorizes the Secretary of Labor to perform studies and provide information to labor unions, management, and the public about the abilities and needs of older workers and their employment potential and varied contributions to the economy.
PROCEDURAL REQUIREMENTS AND DEFENSES UNDER ADEA
The procedural requirements for an ADEA suit are complicated. Before an individual can sue in his/her own right, a private plaintiff must file charges with the Equal Employment Opportunity Commission (EEOC) or with an appropriate state agency. The EEOC may also sue to enforce the ADEA. A three-year statute of limitations exists for both government and private suits starting from the date of an alleged willful violation. For cases of nonwillful violations, the statute of limitations is two years from the date of the alleged violation.
The plaintiff does not need to prove that age was the only factor motivating the employer's decision, but must establish that age was one of the determining factors guiding the employer's discriminatory actions. Once the plaintiff establishes a prima facie case, the burden of evidence shifts to the employer. The employer must provide a legitimate, nondiscriminatory reason for the employee's demotion or discharge. Charges filed and resolved under the ADEA are tracked by the Office of Research, Information, and Planning which gets its data from the EEOC's Charge Data System.
The ADEA allows employers to discharge or otherwise discipline an employee for good cause, and to use reasonable factors other than age in their employment decisions. It also allows employers to observe the terms of a bona fide seniority system, except where such a system is used to require or permit the involuntary retirement of anyone age 40 or over.
In addition, the ADEA provides for a bona fide occupational qualification (BFOQ) defense. In general, an employer seeking to use this defense must show that its age classification is reasonably necessary to the safe and proper performance of the job in question. Specifically, the employer must show either: 1) that it is reasonable to believe that all or most employees of a certain age cannot perform the job safely, or 2) that it is impossible or highly impractical to test employees' abilities to tackle all tasks associated with the job on an individualized basis. For example, an employer that refuses to hire anyone over the age of 60 as a pilot has a potential BFOQ defense if it has a reasonable basis for concluding that 60-and-over pilots pose significant safety risks, or that it is not feasible to test older pilots individually.
CURRENT ADEA ISSUES
Age discrimination cases will be of increasing concern to businesses in the future as the work force in the US and in many developed countries continues to mature. In addition, changes in Social Security laws are pushing up the age at which a person may begin to draw full Social Security benefits and this will cause many more workers to stay on the job until later in life. In Supervision, Mary-Katheryn Zachary warns that plaintiffs in age discrimination cases typically receive more empathy than other discrimination plaintiffs and judges hearing such cases are likely to be in the protected class themselves. Damages can be substantial and may take the form of back pay, front pay, overtime pay, emotional distress pay, liquidated damages, and multipliers for intentional violations of the law. Remedies can also include equitable relief, hiring, reinstatement, and promotion. Employers are cautioned to consider ADEA laws when restructuring the workplace.
Another important issue facing employers in this realm is the legal interpretation of the ADEA as it relates to retirees. Federal court rulings in mid-2000 indicated that under the Age Discrimination in Employment Act, employers had to provide the same health care benefits to Medicare-eligible retirees that they do to younger retirees who do not yet qualify for Medicare. Critics of this interpretation within the business world claim that the practical result of such a ruling, if not addressed by Congress, will be a dramatic drop in the percentage of businesses offering comprehensive health care benefits to retired workers.
Amidst a flood of protests from employers and labor organizations, the EEOC reviewed the question of differential health care benefits for retirees of different ages, those under and those over the age of Medicare-eligibility. In 2003 the EEOC proposed a rule to exempt retiree health care plans from the ADEA and adopted the new rule in 2004. The rule was almost immediately challenged in a law suit, brought by the American Association of Retired Persons (AARP), late in 2004. A initial ruling in the case found in favor of the AARP. However, the ruling was reviewed in light of a mid-2005 U.S. Supreme Court ruling on another case. According to an article in Business Insurance dated October 3, 2005, Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania "stated last week the EEOC has the authority to implement a rule that would exempt from the Age Discrimination in Employment Act changes to health plans that affect retired workers when they become eligible for Medicare."
This ruling, if it withstands appeal, leaves employers free to provide a two-tiered system of retiree health care coverage, with younger retirees receiving more generous benefits than their older and Medicare-eligible counterparts, without running afoul of the ADEA.
As health care costs rise and the workforce ages with the steady march of the baby boom generation, issues of age discrimination on both ends of the age spectrum are likely to remain an issue of importance for all employers.
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Lindemann, Barbara. American Discrimination in Employment Law. January 2003.
Zachary, Mary-Kathryn. "Age Discrimination-Part II: The Private Employee." Supervision. September 2000.
Zachary, Mary-Kathryn. "Age Discrimination-Part I: The State Employee." Supervision. July 2000.
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Hillstrom, Northern Lights
updated by Magee, ECDI
Prejudicial treatment or denial of rights based on age.
As the baby boom generation, the largest demographic group in U.S. history, reached middle age and looked toward retirement, laws governing the treatment of older U.S. citizens took on greater importance than ever before. Between 1970 and 1991, the number of workers over the age of 40 in the U.S. workforce rose from 39,689,000 to 53,940,000. It is no surprise, then, that major developments, both legislative and judicial, occurred in the area of age discrimination in employment.
Congress outlawed discrimination by employers against employees or applicants over the age of 40, with the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C.A. § 621 et seq.). Amendments to the act in 1974, 1978, and 1986 (29 U.S.C.A. § 623 et seq.) raised and then eliminated the mandatory retirement age for most workers and extended the act's coverage to most employers. The ADEA does permit employers to set maximum age limits for employees if the employer can show that age is a bona fide occupational qualification (BFOQ) and is reasonably necessary for the operation of the business. Although the ADEA did not originally apply to government employers, Congress extended the act to cover federal, state, and local governments in 1974. However, it no longer applies to state governments.
The equal employment opportunity commission (EEOC) is charged with enforcing the ADEA. Complainants must first file a claim with the EEOC or their state's employment or human rights commission before pursuing a lawsuit. The EEOC attempts to resolve the dispute through voluntary compliance on the part of the employer, conciliation, or other persuasive measures. If the EEOC decides to bring an action against the employer, the employee's right to sue is extinguished. However, the employee need not exhaust his or her administrative remedies—that is, wait for a final determination from the EEOC—before filing suit.
Landmark Discrimination Cases
A number of landmark cases have interpreted the ADEA since its passage. Western Air Lines v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 86L. Ed. 2d 321 (1985), set out the guidelines for defending an age limit based on the BFOQ exception. Western required flight engineers, who are members of the flight crew but generally do not operate flight controls, to retire at age 60. When this policy was challenged, the airline maintained that the age limit was a BFOQ necessary to ensure safety. The Supreme Court disagreed, and in a unanimous decision announced a two-pronged test to be applied when evaluating a BFOQ based on safety: (1) whether the age limit is reasonably necessary to the overriding interest in public safety; and (2) whether the employer is justified in applying the age limit to all employees rather than deciding each case on an individual basis.
In another case the same year, the Supreme Court found TWA guilty of age discrimination for refusing to transfer pilots to the position of flight engineer after they reached age 60, the Federal Aviation Administration's (FAA's) mandatory retirement age for pilots (Trans World Airlines v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 ). TWA had allowed younger pilots who had become disabled to transfer automatically to the position of flight engineer, but did not allow pilots and copilots past the age of 60 to do the same. The Court held that the airline must give the same opportunity to retiring pilots and copilots as it had given to younger disabled pilots. However, the Court denied the pilots' request for double damages, which are allowed in cases of "willful violation" of the ADEA, stating that a violation is willful only if the employer knew that its conduct was prohibited by the ADEA or showed a "reckless disregard" for whether the act applied.
Older workers seeking redress under the ADEA received mixed opinions in 1989. Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S. Ct. 2854, 106 L. Ed. 2d 134 (1989), overturned a series of courts of appeals decisions as well as EEOC and labor department regulations that required employers to justify any age-based distinctions in employee benefit plans by showing a "substantial business purpose." Betts shifted the burden of proof to the plaintiff to show that the disputed plan was a "subterfuge" for discrimination.
Congressional response to Betts was a compromise between employee advocates and business interests. A 1990 amendment to the ADEA, known as the Older Workers Benefit Protection Act (OWBPA) (29 U.S.C.A. § 626), prohibits discrimination against older employees in the provision of fringe benefits unless the benefit differences are due to age-based differences in cost.
Shortly after the Betts decision, the Supreme Court relaxed the procedural rules governing class actions alleging age discrimination, in Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 110S. Ct. 482, 107 L. Ed. 2d 480 (1989). The Sperling decision made it easier for plaintiffs to join a class action suit against an employer after the suit has been filed.
During the late 1980s and early 1990s, businesses trying to survive in a sluggish economy began reducing their workforces, a practice known as downsizing. When layoffs or early retirements affected older workers disproportionately, age discrimination claims escalated.
Many companies offered attractive earlyretirement packages in return for an employee's waiver of rights to any legal claims. During the 1980s, courts generally allowed such waivers as long as the employee's acceptance was knowing and voluntary and the employee received valuable consideration in return. In Cirillo v. Arco Chemical Co., 862 F.2d 448 (1988), for example, the U.S. Court of Appeals for the Third Circuit held that because the plaintiff had knowingly and voluntarily signed a waiver of his right to sue, and in return had received a higher-than-average severance package, the waiver did not violate the ADEA. Likewise, in Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539, cert. denied, 482 U.S. 928, 107 S. Ct. 3212, 96 L. Ed. 2d 699 (1987), the U.S. Court of Appeals for the Eighth Circuit found that the plaintiff, by virtue of his years of business experience, was well equipped to understand the waiver he signed. Similar reasoning prevailed in Runyan v. National Cash Register Corp., 787 F.2d 1039 (6th
Cir. 1986) (en banc), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L. Ed. 2d 114 (1986), where the court upheld a waiver because the employee who signed it was an experienced labor lawyer.
The ADEA specifically recognizes the validity of waivers in the OWBPA, and establishes strict guidelines for employers to follow in executing them. The waiver must use simple, understandable language that clearly delineates the terms of the agreement and leaves no question that the employee is giving up any right to pursue a lawsuit (29 U.S.C.A. § 626[f]). Several cases in 1993 and 1994 that invalidated waiver agreements illustrate how important it is for an employer to follow the guidelines to the letter. Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993), held that a waiver agreement that did not meet the requirements of the OWBPA was void and could not be ratified even though the employee accepted and retained the severance package offered in exchange for the waiver. The same reasoning applied to invalidate the waiver agreement in Soliman v. Digital Equipment Corp., 869 F. Supp. 65 (D. Mass. 1994).
Age Discrimination: Disparate Impact
In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), which protects workers age 40 or older from employment discrimination based on their age. Anyone who employs 20 or more people is subject to ADEA; it covers hiring, firing, compensation and benefits, training, job assignments, promotions, and layoffs.
Since ADEA's passage, however, there has been a difference of opinion among legal experts about exactly what types of action constitute "discrimination."
There are two different approaches that a plaintiff may take when filing an age discrimination suit, "disparate treatment" and "disparate impact." In disparate treatment cases, the plaintiff must prove that there was a specific intent to discriminate based on age. An example would be an employee whose supervisor keeps saying in front of other staffers, "Are you sure you're still able to do this work?" or "Don't you think it's time you retired?" disparate impact cases require the plaintiff to prove that an employment decision disproportionately affects members of a protected group (in this case, those over 40). In other words, in a disparate impact case, the discriminatory effect is what matters, even if the employer's intent was not discriminatory. Courts that recognize the disparate impact argument in age discrimination cases often require companies to prove "business necessity." For example, if a disproportionate number of employees affected by a layoff are over 40, the company will have to prove that those people were let go because their salaries were disproportionately high and that the company would face financial hardship if they were allowed to stay on.
In other forms of employment discrimination, the disparate impact argument has been used successfully. For example, employers who require prospective employees to have a certain educational background can be liable for a disparate impact charge if it turns out that those educational requirements rule out certain racial groups. The case of Griggs v. Duke Power, 401 U. S. 424, 88P.U.R. 3d 90, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) was the first racial discrimination case to recognize disparate impact. In age discrimination cases, the issue is more vague. It is so vague, in fact, that the U.S. federal circuit courts do not agree about whether disparate impact claims are allowable. The First, Sixth, Seventh, Tenth, and Eleventh Circuits do not allow disparate impact claims; the Second, Eighth, and Ninth do. The Third and Fifth Circuits had not ruled on it as of 2003, and the Fourth Circuit had not addressed it at all. In December 2001 the U.S. Supreme Court heard the case of Adams v. Florida Power Corp, 535 U.S. 228, 122 S. Ct. 1290, 152 L. Ed. 2d 345 (2002), in which the Eleventh Circuit Court had ruled against the plaintiffs' disparate impact argument in 255 F. 3rd 1322 (11th Cir. 2001), citing that it was "unavailable" for age discrimination cases. The plaintiffs took the case to the Supreme Court. The Eleventh Circuit Court argued that age discrimination is closer in scope to the Equal Pay Act (for which the Supreme Court has not allowed disparate impact claims) than Title VII of the civil rights act(which covered Griggs and similar cases). In April 2002 the Supreme Court dismissed the case without discussing its merits, stating only that the writ of certiorari had been "improvidently granted." This outcome left the issue unresolved judicially.
Proponents of disparate impact claims for age discrimination cases argue that employers should not be allowed to make employment decisions that disproportionately affect those over 40. In support of their position they point to employers who try to get around the claims so that they can demote or lay off their older workers. Often, those older workers are among the most highly paid and have the most expensive benefits in the company. From the company's point of view, getting rid of such an expensive workforce in favor of a younger and cheaper staff can generate significant savings, which is the reason the company will give for laying off a disproportionate number of older workers during a round of cost-cutting measures. This, say proponents of disparate impact claims, is clearly age discrimination because it singles out people over a certain age. The fact that a company uses cost savings or some other reason for taking the action does not diminish the adverse impact that action has on older workers.
Opponents of age-based disparate impact claims use the same example to make their case. The employer may indeed have laid off older workers to save money. But saving money is not the same as practicing age discrimination. From a business perspective, the employer has a legitimate financial concern for the future of the company. The fact that a particular action affects one group more than another is not adequate ground for protection in such cases, say those who oppose the disparate impact claim. If a company's only viable options are laying off high-salary employees or closing, it does not have the luxury of protecting workers who are over 40.
It should be noted that opponents of the disparate argument are not necessarily opposed to protection against age discrimination. The u.s. chamber of commerce, which has filed amicus briefs in such cases on numerous occasions, has stated its position clearly: "Reliance on age stereotypes about the abilities of older workers should not be tolerated. Due to natural job progression, however, age affects job terms such as compensation, pension, and seniority. In this context … imposing a burden on employers to justify the business necessity of routine and uniform job standards that statistically impact older workers is unjustified." Few would argue that employers should be forced to tolerate poor workers simply because they are past a certain age. The question is whether disparate impact actually forces them to do so.
Both sides of the debate may need to keep in mind that each case is unique. There is no doubt that some companies have legitimate financial difficulties and may be forced to lay off a disproportionate number of older workers. A company that does so and then makes do with fewer staffers is not the same as a company that turns around and hires younger people at salaries comparable to what the older workers were making. Likewise, an employee who is demoted because his or her work has measurably deteriorated in quality is different from an employee who is demoted for some vague reason upon reaching age 40 or 50.
Falk, Ursula Adler, and Gerhard Falk. 1997. Ageism, the Aged, and Aging in America: On Being Old in an Alienated Society. Springfield, Ill.: Charles C. Thomas.
Posner, Richard A. 1995. Aging and Old Age. Chicago: Univ. of Chicago Press.
The Supreme Court has also upheld that employers must follow the letter of the law when asking employees to waive their rights to file an age discrimination complaint in return for severance pay. In Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998), the worker accepted a severance package and signed a release that stated she would not sue the company for any reason related to her termination. She accepted the severance payments but soon after filed an age discrimination lawsuit. The company argued that the release was valid and that she had not attempted to return her severance payments.
The Supreme Court ruled that the company had failed to meet the minimum notice requirements set out in the OWBP. Specifically, the employer had not given the worker enough time to consider her options; it had failed to give her seven days after she signed the release to change her mind; and the release made no specific reference to claims under the ADEA.
ADEA is Further Clarified
Several cases further clarified the application of the ADEA. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991), the Supreme Court upheld compulsory arbitration under the ADEA. When Robert Gilmer was hired by Interstate/Johnson Lane Corporation, he was required to register with the New York Stock Exchange, which compelled him to agree to arbitrate any controversy regarding employment or termination. He was fired at age 62 and filed a complaint with the EEOC. He then filed an age discrimination suit against Interstate, which moved to compel arbitration of the dispute.
In a decision that seems to reflect the Court's growing encouragement of alternative dispute resolution, Justice byron r. white dismissed Gilmer's arguments that compulsory arbitration was inconsistent with the purposes of the ADEA and that he was in an unequal bargaining position with Interstate. The Court held that an ADEA claim can be subjected to compulsory arbitration without triggering any "inherent conflict" with the ADEA's underlying purposes. The Court further pointed out that Gilmer was a professional businessman who signed the arbitration agreement voluntarily and with full knowledge.
Federal and State Employees Stevens v. Department of the Treasury, 500 U.S. 1, 111 S. Ct. 1562, 114 L. Ed. 2d 1 (1991), clarified the statutory time limits for federal employees to file an age discrimination claim. Charles Z. Stevens III, an internal revenue service (IRS) employee, filed an age discrimination complaint with the IRS's administrative unit. His complaint was rejected because it had not been filed within 30 days of the alleged discriminatory conduct. His subsequent complaint filed with the treasury department was also dismissed, and the EEOC affirmed that dismissal. Stevens filed suit in U.S. district court, only to have his suit dismissed on the ground that it was not timely, a decision that was affirmed by the U.S. Court of Appeals for the Fifth Circuit. The Supreme Court disagreed with the lower courts' interpretation of the statute and held that the ADEA requires federal employees to give the EEOC notice of intent to sue not less than 30 days before the suit is filed, rather than within 30 days, and within 180 days of the alleged discriminatory conduct. These small but significant clarifications of statutory interpretation made it easier for federal employees to seek redress under the ADEA.
The legal landscape for age discrimination complaints became more challenging for plaintiffs who work for state government after the Supreme Court decided Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). In this case, a group of Florida university professors and librarians who were over 40 alleged that the university system had failed to adequately compensate them as compared to younger employees. The plaintiffs sued under the ADEA and a state civil rights act.
The state of Florida, instead of litigating the merits of the lawsuit, challenged the constitutionality of the ADEA as applied to state governments. It argued that under the eleventh amendment it was immune from federal age discrimination lawsuits. Prior court decisions had found that Congress had validly exercised its power under the Constitution's Article I commerce clause to enact the ADEA. However, this power did not extend to lawsuits filed by private individuals. Instead, Congress could abrogate a state's sovereign immunity by invoking the fourteenth amendment as its authority.
The Supreme Court concluded that Congress had not demonstrated that the Fourteenth Amendment authorized the application of the ADEA to state governments. States could lawfully discriminate on the basis of age if the discrimination is "rationally related to a legitimate state interest." In addition, the Court found no facts in the record to show that Congress needed to act against state governments for age discrimination. In light of this ruling, state employees must use state civil rights laws involving age discrimination to press their claims.
Hazen Paper v. Biggins In 1993, the Supreme Court clarified the standards by which a business decision will be found to be a "pretext" for discrimination, and what conduct constitutes "willful" violation of the ADEA. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), a 62-year-old employee, Walter Biggins, sued his employer and its two owners, alleging age discrimination in the decision to fire him after almost ten years of employment. Biggins sought relief by claiming "disparate treatment" because of his age. In a claim of disparate treatment, the employee must prove that the employer intended to discriminate against the employee based on an impermissible criterion, his or her age. Biggins alleged that, since the firing occurred just weeks before his ten-year anniversary, when he would have been fully vested in the company's pension plan, the dismissal was due to his age. The company maintained that Biggins's outside activities created a risk of exposing trade secrets and that his refusal to sign a nondisclosure, noncompetition agreement prompted its decision to fire him.
The Supreme Court attempted to address several questions presented by the case. Did Biggins prove a case of disparate treatment based on age? Is discrimination based on pension status necessarily equivalent to discrimination based on age? What constitutes willfulness under the ADEA?
On the first issue, the Court found that the element of intent to discriminate because of age, necessary to prove a claim of disparate treatment, was absent. A decision to fire Biggins because he was close to vesting in the pension plan did not satisfy the proof requirements because it was not motivated by the prohibited presumptions about older workers, namely, that they are less productive and less competent than younger employees. Biggins failed to show that these stereotypes "had a determinative influence" on Hazen's decision.
Next, the Court found that Biggins did not prove that Hazen's reason for terminating him was a pretext for age discrimination. Justice sandra day o'connor, writing for a unanimous Court, stated that "an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service." The Court found that pension status is not the same as age under the ADEA and that employers may make business decisions based on an employee's years of service without necessarily violating the ADEA. Biggins did prove that his firing was a pretext for discrimination because of his pension status. It did not follow, however, that he was fired because of his age. Age and pension status, according to the Court, are "analytically distinct" factors in determining a claim under the ADEA. The Court concluded that proof of discrimination based on an employee's pension status is not, absent further evidence, the legal equivalent of proof of discrimination based on age.
Addressing the question of whether Hazen acted willfully so as to incur liquidated damages under the ADEA, the Court reaffirmed its position that a violation is willful only if the employer knew or showed reckless disregard for whether its actions violated the act. Using this test, the employer will not incur liquidated damages if it makes an age-based decision that it believes, in good faith and nonrecklessly, is permitted.
Biggins makes it more difficult for an ADEA plaintiff to prevail. The plaintiff must now show direct evidence of age discrimination. Indirect, empirical correlations, such as pensions and seniority, is not enough to prove the claim.
Reverse Age Discrimination?
Age discrimination is not limited to the workplace, nor is it experienced only by those over age 40. In 1994, the state of New York successfully sued five car rental agencies for refusing to rent vehicles to licensed drivers between the ages of 18 and 25 (People by Koppell v. Alamo Rent A Car, Inc., 162 Misc. 2d 636, 620 N.Y.S.2d 695 ). A few months earlier, New York City had become the first city in the United States to prohibit discrimination against the young in public places; a violation of the new law could bring a fine of up to $100,000.
In January 1994, coverage of the ADEA was extended to tenured faculty at colleges and universities. The result was that many tenured professors continued to teach after the age of 70, the typical mandatory retirement age before ADEA. With enrollments shrinking and fewer faculty positions opening up, younger people found it more and more difficult to obtain teaching positions in higher education, raising the specter of a "reverse discrimination" challenge.
Beyer, James R. 1993. "Biggins Leaves ADEA Issues Unresolved." National Law Journal (July 19).
Bodensteiner, Jill R. 1994. "Post OWBPA Developments in the Law Regarding Waivers to ADEA Claims." Washington University Journal of Urban and Contemporary Law 46 (summer).
Fick, Barbara. 1997. American Bar Association Guide to Workplace Law. New York: Times Books.
Gregory, Raymond F. 2001. Age Discrimination in the American Workplace: Old at a Young Age. Piscataway, N.J.: Rutgers Univ. Press.
Johns, Roger J., Jr. 1994. "Proving Pretext and Willfulness in Age Discrimination Cases after Hazen Paper Company v. Biggins." Labor Law Journal 45 (April).
Kulatz, Karen. 1993. "Trading Substantive Values for Procedural Values: Compulsory Arbitration and the ADEA." University of Florida Journal of Law and Public Policy 5 (spring).
Lawrence, Emily J. 1992. "Clarifying the Timing Requirements for Federal Employees' Age Discrimination Claims." Boston College Law Review 33 (March).
Payton, Janet G. 2003. "Age Discrimination Checklist." Corporate Counsel's Quarterly 19 (January).
Gomez-Perez v. Potter
The U.S. Supreme Court in May 2008 decided that a plaintiff can assert a claim under the Age Discrimination in Employment Act of 1967 when an employer retaliates against an employee for filing a complaint based on age discrimination. The Court reached this holding despite the fact that the federal statute on which the claim was based does not mention the word “retaliation.” The case was noteworthy because the majority consisted of an unusual blend of conservative and liberal justices.
The Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 621 et seq. , provides protection for employees of ages 40 and older from employment discrimination based on the age of the employee. The statute applies to both employees and applicants for employment. The ADEA proscribes discrimination against a person because of the person's age with regard to any term, condition, or privilege of employment. The statute applies to any employer who has 20 or more employees. It also applies to state and local governments, employment agencies, and the federal government.
The section of the ADEA that applies to federal government employee is 29 U.S.C.§ 633a(a). Under this section, “All personnel actions affecting employees or applicants for employment who are at least 40 years of age … in the United States Postal Service and the Postal Rate Commission … shall be made free from any discrimination based on age.” The agency authorized to interpret the statute, the Equal Employment Opportunity Commission, took the view that the ADEA was designed to prohibit “retaliation for opposing any practice made unlawful by” the statute.
At least one appellate court previously held that the ADEA created a cause of action for retaliation when a federal employee complains about age discrimination. In Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), a curator with the National Museum of American History of the Smithsonian Institution brought suit under the ADEA, alleging that the Smithsonian Institution had retaliated against him when he alleged that he had been the victim of age discrimination. The court recognized that the ADEA allowed the plaintiff to bring the retaliation claim because a workplace, noting, “It is difficult to imagine how a workplace could be ‘free from any discrimination based on age’ if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee.”
Myrna Gomez-Perez was first hired by the U.S. POSTAL SERVICE in New York in 1987. She was transferred in 1995 to the Caribbean District and began working in Puerto Rico. When she learned that her mother was ill, Gomez-Perez requested a transfer from the Dorado Post Office to the Moca Post Office so that she could be closer to her mother. Her supervisor approved this request, but one month later, she requested to be moved back to the Dorado Post Office. On the same day that she made this request, her supervisor converted her old position into a part-time job and hired another employee to fill it. Thus, the supervisor denied her request.
Gomez-Perez, then 45, subsequently filed an equal employment opportunity complaint with the Postal Service, arguing that her supervisor had discriminated against her on the basis of her age. After she filed the complaint, she alleged that she became the subject of various forms of retaliation, including suggestions that she had sexually harassed co-workers. Her work hours were reduced dramatically as well.
In 2003, Gomez-Perez filed suit against the Postal Service as well as John E. Potter, the Postmaster General, in the U.S. District Court for the District of Puerto Rico. She argued that her supervisor had retaliated against her for filing the EEO complaint, and she based her claim on 29 U.S.C.§ 633a(a). In 2006, the district court held in favor of the Postal Service, finding that the ADEA did not allow private plaintiffs to bring retaliation claims under its provisions. Gomez-Perez v. Potter, No. 03-2236, 2006 WL 488060 (D.P.R. Feb. 28, 2006).
Gomez-Perez then appealed the decision to the First Circuit Court of Appeals. Before the appellate court, she argued that the Supreme Court in previous cases had recognized a cause of action for retaliation when the statute only refers explicitly to discrimination. More specifically, the Supreme Court in Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005), the Court held that under Title IX, retaliation constitutes a form of discrimination that is prohibited by federal statute even though the statute does refer specifically to retaliation. The First Circuit was not persuaded, however, and ruled that the ADEA did not create a cause of action for retaliation. Gomez-Perez v. Potter, 476 F. 3d 54 (1st Cir. 2007).
During oral argument, the justices focused most of their attention on the language of the statute. Justice Antonin Scalia noted to Gomez-Perez's counsel that the plain language of the ADEA does not specifically cover retaliation claims. Justice Ruth Bader Ginsburg, on the other hand, suggested that an anti-discrimination statute must cover retaliation claims. “A person who is discriminated against will quite commonly say, ‘I was not promoted because that was discrimination, and then because I complained about it, all these bad things happened to me.’”
In a 6-3 decision the Court reversed the First Circuit's decision. Gomez-Perez v. Potter, No. 06-1321, 2008 WL 2167189 (May 27, 2008). Justice Samuel Alito, a conservative, sided with his more liberal counterparts and wrote the majority opinion. Alito focused much of his attention on how the Court had treated retaliation claims under similar federal statute, including the Court's treatment of such claims under Title IX in Jackson. Much earlier, the Court had used a similar rationale in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969) to find that a federal statute that prohibited discrimination based on race also prohibited retaliation.
Chief Justice John Roberts wrote a dissent, which was joined in part by Scalia and Justice Clarence Thomas. Roberts argued that the Court placed too much reliance on the precedent set forth in Jackson and Sullivan. Thomas also wrote a separate dissent where he argued that the Court should have decided the case based on the plain meaning of the statute's language.
Kentucky Retirement System v. Equal Employment Opportunity Commission
The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§ 621 et seq., was enacted to protect older workers from arbitrary employment practices, such as the setting up of age requirements unrelated to the ability needed for the job or creating a two-tiered benefits plan based on age. While similar in wording to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A,§§ 2000e et seq., the ADEA has some defenses and provisions uniquely applicable to age discrimination. The most important difference is that a person alleging age discrimination must prove that the employer intentionally discriminated on the basis of age. This standard of liability is called disparate treatment and is often very hard to prove. In contrast the standard of liability known as disparate impact only requires the plaintiff to show that the employer used a facially neutral test or other employment practice that unjustifiably resulted in discrimination against members of a protected group. Because the Supreme Court disallowed disparate impact in ADEA cases, plaintiffs have had a harder time prevailing. Such was the case in Kentucky Retirement System v. Equal Employment Opportunity Commission,—U.S.—, 128 S. Ct. 2361,—L. Ed. 2d—(2008), where the Court ruled that a state and county retirement plan that gave different levels of pension benefits to “hazardous position” workers based on their ages did not violate the ADEA.
Charles Lickteig, who worked in the Jefferson County, Kentucky Sheriff's Department, became eligible to retire at age 55. Classified as a hazardous position worker, Lickteig continued to work, became disabled, and then retired at age 61 after 18 years of employment. He discovered that he was treated differently than younger workers who became disabled before they reached the age of 55 or had served 20 years. The disability plan awarded benefits based in part on how close a disabled worker was to reaching normal retirement. The plan sought to provide disabled workers with the same retirement benefits they would have had if they continued to work until eligible for normal retirement. Lickteig filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that because older workers who became disabled after the age of 55 did not receive the same amount of benefits as younger workers, the same the plan affects older workers differently than younger workers.
The EEOC sided with Lickteig and filed suit in Kentucky federal district court alleging that the plan violated the ADEA. The district court and a panel of the Sixth Circuit Court of Appeals ruled in favor of the state, finding that the disability retirement benefits program, while taking age into account, did not attach any stigma based on age itself. The entire Sixth Circuit reheard the case and reversed itself, holding that the act of treating younger disabled retirees more generously than older retirees was sufficient to establish an ADEA violation.
The Supreme Court, in a 5–4 decision, reversed the Sixth Circuit ruling. Justice Stephen Breyer, writing for the majority, noted that Lickteig had to prove that the state intentionally discriminated on the basis of age when it created the two-tier disability retirement system. He concluded that Lickteig and the EEOC had failed to meet that burden of proof. The benefit at issue was offered to all employees working in hazardous positions on the same nondiscriminatory terms. Moreover, Congress had approved programs that calculated permanent disability benefits using a formula that expressly took age into account. The Kentucky plan reasonably took age and length of service into account when structuring benefits for disabled workers who were eligible for retirement. The differences in treatment were “not motivated by age.”
Justice Anthony Kennedy, in a dissenting opinion joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel Alito, argued that the decision undercut the framework of the ADEA. Kentucky's motivations did not matter when assessing the benefits plan. Kennedy stated that !By explicit command of Kentucky's disability plan, age is an express disadvantage.” It made no sense to force plaintiffs to prove intentional discrimination when the plan was discriminatory on its face.
Meachum v. Knolls Atomic Power Laboratory
The Supreme Court issued an important ruling in June 2008 involving burdens of proof under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 623(a)-(c). Under the statute , an employer may avoid liability for age discrimination if the employer's business practices were based on a “reasonable factor than age.” The Court determined that the employer bears the burden of proving that an action was for a reason other than age, rather than requiring an employee to prove that the action was not based on such a factor. The decision reversed a ruling from the Second Circuit Court of Appeals.
The ADEA establishes general prohibitions against age discrimination. The statute was based on an earlier version of the Civil Rights Act of 1964 but was drafted with an understanding that age presents unique problems for employers because an employer may need to terminate an older employee for a reason other than the employee's age. Accordingly, the statute provides, “It shall not be unlawful for an employer … to take any action otherwise prohibited [in the act] … where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age. …” 29 U.S.C.§ 623(f)(1) (2000).
In Smith v. City of Jackson, 544 U.S. 228, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005), the Court recognized that a plaintiff can bring a disparate-impact claim under the ADEA, meaning that a plaintiff may prove a violation by showing that an employer's practice had the effect of discriminating against employees by age. A disparate-impact claim differs from a disparate-treatment claim in that the latter focuses on intentional discrimination based on age.
Both disparate-impact and disparate-treatment claims under the ADEA are governed by a burden-shifting scheme established in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 722 (1989). Under this case, the plaintiff initially has the burden to prove that the employer's business practice has a significant disparate impact on older workers, meaning those over the age of forty. If the plaintiff can prove this, the burden shifts to the defendant to provide a legitimate business justification for the practice. Even if the employer can show this justification, though, the plaintiff may still prove a case under the ADEA by showing that the employer could have adopted an alternative that would have been just as effective as the discriminatory option.
Knolls Atomic Power Laboratory is one of several contractors employed by the federal government to maintain U.S. nuclear-powered warships. The United States Navy's Nuclear Propulsion Program, in consultation with Knolls itself, sets the staffing limit for the lab. Due in large part to the end of the COLDWAR, the demands for Knolls' services in the area of naval nuclear reactors decreased. Knolls thus had to reduce its workforce by a total of 143 people. The company made a buyout offer that about 100 employees accepted. However, the company was left with the need to eliminate about 30 other jobs.
To determine which of the remaining employees would be terminated, the company ordered its supervisors to list the employees on a matrix and ranking them in a number of categories. These categories included performance, flexibility, criticality of skills, and length of service. The performance category was based primarily on the average of previous evaluations, while the length of service was based on objective criteria. On the other hand, the flexibility and criticality categories were judged on subjective criteria based largely on the opinions of the supervisors. Of an estimated 2,063 company employees, 31 were selected for layoff based on these rankings. Thirty of the 31 employees who were laid off were over the age of 40.
Most of the employees brought suit, arguing that Knolls had violated the ADEA. The employees brought claims for both disparate treatment as well as disparate impact, arguing that the company “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees.” The workers produced a statistical analysis showing that the results achieved by Knolls' ranking process could rarely happen by chance in terms of the ages of the affected employees.
The trial court held in favor of the employees on the disparate-impact claim but held in favor of Knolls on the disparate treatment claim. Meachum v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193 (N.D.N.Y. 2002). On appeal, the Second Circuit Court of Appeals affirmed. Meachum v. Knolls Atomic Power Laboratory, 381 F.3d 56 (2d Cir. 2004). Shortly after the Second Circuit's decision, though, the Supreme Court rendered its decision in Smith, and in 2005, the Court vacated the Second Circuit's decision and remanded the case for further consideration.
On remand, a divided panel of the Second Circuit held in favor of Knolls, finding that the employees had failed to meet their burden of proof. Meachum v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006). The dissent in the case, written by Judge Rosemary Pooler, argued that the majority had misinterpreted the standard for disparate-impact cases. According to the dissent, the statutory exemption in cases where an employer can establish reasonable factors other than age is an affirmative defense that the employer must prove.
In a 7–1 decision in which Justice Stephen Breyer did not participate, the Court reversed the Second Circuit. According to the Court, the exemption that applies when an employer gives reasons other than age provides an affirmative defense, and the burden of persuasion falls on the employer to prove this defense. This ruling is consistent with the Court's principle stating that “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it.” The ruling means that the treatment of this exception is the same as the exception where an employer imposes bona fide occupational qualifications, which is another exception that the Court treats as an affirmative defense. In issuing this ruling, the Court vacated the Second Circuit and remanded for further proceedings.
Justice Antonin Scalia wrote a concurring opinion, where he argued that the question before the Court should have been answered by deferring to the Equal Employment Opportunity Commission's rule. Justice Clarence Thomas dissented in part of the opinion because he disagrees that the ADEA allows disparate impact claims based on age.
Sprint/United Management Co. v. Mendelsohn
The admission of information at trial is governed by rules of evidence. The Federal Rules of Evidence govern all criminal and civil matters filed in federal courts and have been adopted, in large part, by state judicial systems. Whether certain information is admissible at trial can determine the outcome of a litigation, so lawyers are particularly interested in how the U.S. Supreme Court interprets evidence rules. This was the case in Sprint/United Management Co. v. Mendelsohn,—U.S.—, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008), where the lower courts were divided over whether to admit testimony mony in age discrimination lawsuits from employees who were not supervised by the alleged company wrongdoer. The central issue was whether a per se rule applied admitting or excluding such evidence. A per se rule instructs the parties that the court will not examine the details of the proffered testimony or documents to determine admissibility; instead, the rule acts as a bright line that either admits or bars the introduction of that type of evidence. Such rules are disfavored by the courts, as relevance and prejudice are determined in the context of the facts and arguments in a particular case. Seen in this light, the announcement of a per se rule by the Supreme Court is a major development. In this case the Court pulled back from such a ruling, finding that the trial court's basis for its ruling was unclear and warranted clarification from that court.
Ellen Mendelsohn was employed in the Business Development Strategy Group pf the Sprint/United Management Company from 1989 until 2002. Mendelsohn was terminated in 2002 as part of a company-wide reduction in force. She filed suit in federal district court under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.§§ 621 et. seq., alleging she was laid off because of her age. To help prove her claim, she wanted to introduce testimony by five former Sprint employees who claimed that their supervisors had discriminated on the basis of their age. Three of the employees alleged that they had heard one or more Sprint supervisors or managers make remarks denigrating older workers. One employee alleged that an intern program was a scheme for age discrimination and that she had seen a spreadsheet suggesting that supervisors could consider age in making layoff decisions. Another witness was prepared to testify that he had been given unwarranted negative performance evaluations because of his age and that he had witnessed another employee being harassed because of her age. The last witness alleged that the company had required him to get permission before hiring anyone over the age of 40. After he was terminated Sprint hired a younger employee to replace him and the company rejected his later job applications.
All of this proposed testimony suggested a hostile work environment based on age discrimination. However, none of the witnesses worked with Mendelsohn in the Business Development Strategy Group and none had worked under her supervisors in her chain of command. Sprint moved to exclude the testimony, contending that it was irrelevant to the central element in Mendelsohn's claim that she was fired by her direct manager because of her age. Sprint said the testimony would only be relevant if the witnesses were “similarly situated” in that they shared the same supervisors. Finally, it argued that the testimony should be barred under Rule 403 of the Federal Rules of Evidence, as its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay. The court agreed with Sprint and issued a brief order that stated Mendelsohn could only introduce evidence of discrimination against Sprint employees “who are similarly situated to her.” The court defined “similarly situated to her” as requiring proof that her direct manager was the decision-maker in any adverse employment action and actions were in “temporal proximity.” Beyond that, the district court provided no explanation for its ruling.
As the trial proceeded, the court orally clarified this ruling, stating that Mendelsohn could introduce testimony going to a totally different question as to whether the reduction in force was a pretext for age discrimination. In the end, Sprint prevailed at trial. The Tenth Circuit of Appeals interpreted the written order as the application of a per se rule barring evidence from employees with other supervisors as irrelevant to proving discrimination in ADEA cases. The appeals court concluded the lower court had abused it discretion because in this case the issue was not discriminatory discipline or actions but rather a company-wide policy of discrimination. Therefore, Tenth Circuit found the evidence relevant and reversed and remanded the case for a new trial.
The Supreme Court, in a unanimous decision, vacated the lower court decisions and returned the case to the district court to clarify its evidentiary ruling. Justice Clarence Thomas, writing for the Court, ruled that the Tenth Circuit should not have ruled on the relevancy of the evidence and instead, should have remanded the case for clarification. The appeals court had failed to give the great deference to district court evidentiary rulings that the Court has required. It was unclear if the district court had used an incorrect precedent in making its ruling. Because of this ambiguity it was incorrect for the appeals court to conclude the district court abused its discretion. If in fact the court had applied a per se rule, the appeals court would have been correct to conclude the court had abused its discretion.
Age Discrimination in Employment Act
Age Discrimination in Employment Act
United States 1967
The civil rights movement of the 1960s brought about numerous social changes that transformed America. Government officials began to address the important issue of discrimination in the workplace, focusing their attention on race and gender. During this time, however, two other social groups also gained attention—the middle-aged and elderly. Until that time, age discrimination had never been considered a serious issue. Advances in medical technology had begun to extend the average life expectancy and as a result caused a dramatic shift in America's demographics. With more elderly remaining in the workforce, cases of age discrimination were also on the rise. Indeed, positive policies such as the Social Security Act had inadvertently affected the elderly in a negative way, making it disadvantageous to remain in the workforce. Also, middle-aged employees found themselves losing out to their younger coworkers. Although some states already had laws to prevent age discrimination, no federal law existed. Congress began to discuss the issue in depth and in 1967 passed the Age Discrimination in Employment Act (ADEA). Under the new legislation, the employment rights of Americans 40 years of age and older were officially protected, preventing employers from discriminating against them solely on the basis of their age. ADEA would undergo the amendment process in 1974, further strengthening the rights of the middle-aged and elderly.
- 1947: Great Britain's Labour government nationalizes coal mines.
- 1952: Among the cultural landmarks of the year are the film High Noon and the book The Invisible Man by Ralph Ellison.
- 1957: High schools in Little Rock, Arkansas, are integrated with the aid of federal troops.
- 1962: As the Soviets begin a missile buildup in Cuba, for a few tense days in October it appears that World War III is imminent. President Kennedy calls for a Cuban blockade, forcing the Soviets to back down and ultimately diffusing the crisis.
- 1967: Biafra secedes from Nigeria.
- 1967: Arabs attack Israel, launching the Six-Day War, which results in an Israeli victory. Israel now occupies a number of formerly Arab-held territories, most notably the Old City of Jerusalem. In the years that follow, the Israelis will be forced to give up much of the territory, which stretches to the borders of Egypt. Their continued possession of the Jordan River's West Bank will provide a cause for enduring controversy with their Arab neighbors and with the newly mobilized Palestinian minority.
- 1967: Racial violence sweeps America's cities, as Harlem, Detroit, Birmingham, and other towns erupt with riots.
- 1967: The Beatles' Sgt. Pepper's Lonely Hearts Club Band tops the list of releases for a year that will long be remembered as a high point of rock history. Among the other great musical events of the year are releases by the Jimi Hendrix Experience, the Doors, and Jefferson Airplane; also, the Monterey Pop Festival marks the debut of Hendrix and Janis Joplin.
- 1967: Assisted by a team of surgeons, South Africa's Christiaan Barnard performs what is considered the world's first successful human heart transplant, though the patient dies 18 days later.
- 1972: In June police apprehend five men attempting to burglarize Democratic Party headquarters at the Watergate Hotel in Washington, D.C.
- 1977: Newly inaugurated U.S. President Jimmy Carter pardons Vietnam draft dodgers.
- 1982: Israeli troops invade Lebanon in an attack on the Palestine Liberation Organization (PLO).
Event and Its Context
The Roots of Discrimination
Until the twentieth century, the aged received little or no attention in government. They were involved in few political groups or movements and held little lobbying power. Much of this had to do with their small numbers. Because of advances in medicine, however, the life expectancy for Americans climbed dramatically. In turn, so too did the population of people aged 60 and older. Suddenly, the "gray lobby" had grown into a force with the size and power needed to pressure politicians for change. One key issue that the gray lobby wanted to address was employment, specifically retirement.
Before the middle of the nineteenth century, the concept of "retirement" was virtually unheard of. Approximately 70 percent of men aged 65 and over remained in the workforce in 1890. The effect of inflation and the high cost of living prevented early retirement. Over the next 100 years, the percentage of elderly in the workforce would drop significantly, but only because of policy changes. Many of these governmental changes began during the Great Depression.
Around 1933, Dr. Francis Townsend began the "Townsend movement" to promote a pension plan for Americans aged 60 and older. Under Townsend's plan, every worker would received $200 per month during retirement. Many in government, however, believed the plan would be unworkable. So, despite its popularity with many senior citizens, Townsend's movement died out. On 14 August 1935, however, President Franklin D. Roosevelt signed the Social Security Act into law as part of the New Deal. This act provided an old-age pension for all retirees aged 65 or older.
Although the benefits of an old-age pension were obvious, the Social Security Act also had an underlying negative effect. Although the act did not force the elderly into retirement by "law," the benefits were reduced for those who opted to continue working after age 65. The loss involved one month's pension for each month of continued employment. This restriction inadvertently strengthened the growing trend of age discrimination. Because of the scarcity of jobs at the time, many wanted the elderly to retire and thus make way for younger workers. Those elderly who wished to continue working not only lost pension benefits as a result of their choice but also faced a hostile job market. They discovered that there were few, if any, laws to protect them against age discrimination.
Like their older peers, middle-aged employees also found themselves the frequent victims of age discrimination. Promotions and advancement opportunities typically went to the younger employees. Because these middle-aged employees were closer to "retirement" age, employers were unwilling to invest in these employees by hiring or training them. In the politically turbulent days of the civil rights movement, the rights of this population were commonly forgotten in favor of a focus on matters of race and gender discrimination. Fortunately, the middle-aged employees' connection to the growing gray lobby meant they did not go completely ignored. Both age groups would eventually see changes in the law to help them overcome the hurdle of age discrimination.
The Civil Rights Movement: Birth of the ADEA
Although the problem of age discrimination existed in the United States workforce, little was done to address the issue until the late 1960s. One major step, however, involved tackling the problems caused by pension penalties. A 1950 amendment to the Social Security Act allowed people 75 years of age and older to work without loss of their benefits. Another amendment in 1954 lowered the age exemption to 72. Although the amendment protected elderly workers who wished to return to the workplace, it in no way protected their employment rights or guaranteed that they would be able to find work. Age discrimination remained virtually unchecked. According to a study cited in Lawrence Friedman's book Your Time Will Come: The Law of Age Discrimination and Mandatory Retirement, of "21,386 job openings listed with state employment offices in 7 cities (1956)—more than half of the jobs were closed to people over a certain age."
As the civil rights movement strengthened during the 1950s and 1960s, the concept of fair employment gained the attention of lawmakers. States began to develop laws that prevented unfair hiring practices on the basis of race, gender, and religion. In some states, the laws were extended to consider age discrimination as well. In 1956 new statues eliminated the maximum hiring age for federal employees. Several political changes also contributed to an improved picture regarding employment issues of the aged. These included the Manpower Development and Training Act (1962), the Economic Opportunity Act (1964), and President Lyndon Johnson's executive order of 1964, which prevented age discrimination among federal contractors and subcontractors. However, federal legislation that directly affected age discrimination remained elusive despite the matter being featured in the Civil Rights Act debates of 1964. This was undoubtedly because of Congress's fear that any effort to address anything more than racial discrimination under the Civil Rights Act would cause the legislation to fail. Even so, over the next decade, age discrimination continued to be debated.
Between 1955 and 1965, 21 states plus Puerto Rico and the Virgin Islands passed laws that specifically addressed workplace discrimination on the basis of a person's age. However, in its report The Older American Worker, the United States Department of Labor explained that "inadequate funds and staff have limited the effectiveness of these laws in most states. Some have not been implemented at all." This report was a direct result of the Civil Rights Act of 1964, after Congress requested a labor study on age discrimination. The secretary of labor authorized and then distributed the report to Congress in 1965. The study revealed the increasing prevalence of employees 45 and older in the workforce and projected that this population would soon constitute more than a third of employees. Apprised of the sheer number of workers who would be vulnerable to age discrimination, the United States government gained a renewed interest in creating federal legislation to deal with this problem.
That legislation would come on 23 January 1967, in the form of the Age Discrimination in Employment Act (ADEA). Designed to protect the rights of employees aged 40 and older, ADEA prohibited employers from discriminating against employees on the basis of age in hiring, dismissal, status, compensation, terms, and privileges. The law was interpreted as also applying to the management of employment agencies and labor unions. Some limitations were set on the ADEA: only employees of companies with 25 or more workers in industries that affected commerce were protected under the law. In addition, employees 65 years or older were not covered by the ADEA, which strengthened the retirement age set by the Social Security Act.
The ADEA After 1967
ADEA evolved through several changes after President Johnson signed it into law. Two important amendments came in the 1970s. In 1974 an amendment lowered the company size minimum requirement of 25 employees to 20, and in 1978 another raised the age ceiling from 65 to 70. The 1974 amendment also extended the ADEA to protect local, federal, and state government employees, who were not covered previously. Almost as an afterthought, Congress passed the Age Discrimination Act (ADA) of 1975. This law covered age discrimination for both older and younger workers. However, the ADA was vague as a whole and lacked the teeth of the ADEA.
Johnson, Lyndon Baines (1908-1973): U.S. president (1963-1969), Johnson did a great deal for the elderly during his term in the White House, including supporting the ADEA and the Older Americans Act (OAA) of 1965 and issuing an executive order that restricted age discrimination by federal contractors and subcontractors.
Roosevelt, Franklin D. (1882-1945): U.S. president (1933-1945), Roosevelt signed the Social Security Act into law in 1935. The act provided elderly retirees with old-age pensions.
Townsend, Francis E. (1876-1948): Townsend developed the"Townsend plan," which was in many ways the first version of the pension plan. Although his movement failed, it opened the debate about the elderly in the workforce.
Axel, Helen. Employing Older Americans: Opportunities and Constraints. New York: The Conference Board, Inc., 1988.
Daniel, Clifton, ed. Chronicle of the 20th Century. Mount Kisco, NY: Chronicle Publications, 1987.
Friedman, Lawrence M. Your Time Will Come: The Law of Age Discrimination and Mandatory Retirement. New York: Russell Sage Foundation, 1984.
Kendig, William L. Age Discrimination in Employment. New York: American Management Associations, 1978.
United States Department of Labor. The Older American Worker: Age Discrimination in Employment.Washington: U.S. Government Printing Office, 1965.
United States General Accounting Office. GAO/HRD-90-87BR. Age Discrimination: Use of Age-specific Provisions in Company Exit Incentive Programs.February, 1990.
Edelman, Charles D., and Ilene C. Siegler. Federal Age Discrimination in Employment Law: Slowing Down the Gold Watch. Charlottesville, VA: The Michie Company, 1978.
—Lee Ann Paradise
Sections within this essay:Background
Discrimination in the Twentieth Century
Bona Fide Occupational Qualifications
Equal Employment Opportunity Council (EEOC)
National Council on the Aging
U.S. Department of Health and Human Services, Administration on Aging
Age discrimination occurs when an older person is pressured in the workplace to leave. Under the law a person's career cannot be jeopardized solely because of age. Unfortunately, many employers resort to subtler but equally damaging tactics to thin the ranks of older workers. Today, "older worker" can mean anyone over the age of 40. Employees who fall into this group need to understand their rights under the law; this way, if they suspect discrimination, they can take appropriate action.
Until the early twentieth century discrimination based on age was not a clear-cut issue in most professions, Most people worked until they reached an age at which they were no longer able to be productive. For the remainder of their lives they would be taken care of by their families.
With the rise in industrialization and in unions, specific guidelines were set in place for how long people should stay on the job. The introduction of pension programs allowed workers the opportunity to stop working when they reached old age, secure in the knowledge that they would be able to take care of themselves financially. Later, government initiatives such as Social Security made it still easier for people to retire.
Beginning after World War II, dramatic changes in the workplace created a shift in policies and attitudes. Technology had made many jobs obsolete, and employees had to learn more and learn faster. As the postwar "baby boom" generation came of age, a growing emphasis on youth pervaded an increasingly crowded workplace. People who had reached old or even middle age began to face increasing pressure to leave the workforce. Sometimes they were simply forced out. Older workers who happen to be women or members of a minority group have to be particularly diligent, since they could be subject to discrimination on additional factors.
Discrimination of any kind is determined by either direct or indirect evidence under the law. Direct evidence can include outright statements an employer makes about a particular job candidate that shows intent to exclude. Indirect evidence can be when an employer makes job qualifications vague enough to exclude certain people even though everything looks legal and ethical. In age discrimination cases, direct evidence would be an employer telling an older worker, "You're doing that job much more slowly than the others," or "I don't think you'll be able to learn our new computer system." Indirect evidence would be when a potential employer turns down a qualified older job applicant in favor of some-one younger. Of course, if the younger employee is demonstrably better qualified, it may not be a case of discrimination. But if, for example, a qualified older worker is passed over for a job and the employer continues to interview other candidates, the employer may be deliberately excluding the older candidate.
The "baby boom" that began at the end of World War II in 1945 and lasted until the early 1960s generated an enormous number of new employees in the 1970s and 1980s. Interestingly, many companies saw the baby boomers as detrimental to productivity. To be sure, the youthful boomers lacked the experience of mature workers. But they were also the victims of stereotypes. Companies believed that these young people, born in the heady days of the postwar economy, would be less willing to work their way up from the bottom, as their parents had done. The younger workers would probably be spoiled and arrogant, and, consequently, less productive.
At the same time, rapid advances in technology meant that workers needed to be able to adapt to new ways of doing their jobs. Many companies that had prided themselves on a policy of "lifetime employment" began to see their longtime workforce as a drain on productivity. The reasoning had less to do with any belief that older workers would be unable to master new skills than it did with the fear that the older workers had grown complacent in their jobs. Moreover, older workers commanded the highest salaries and were the most likely to incur high health care costs. As the number of baby boomers in the market increased, companies began to shift their commitment from experience to a younger, less expensive workforce that could be trained (and whose jobs were made easier by technology).
While there are many older workers who want to continue in the jobs because they enjoy their work, many others continue to work because they cannot afford to retire. Thanks in large part to unions, many employees are guaranteed a good pension from their company after a set number of years, regardless of their age at retirement. Known as "30-and-Out" programs (based on a United Auto Workers deal with Chrysler in 1973), they allow workers to put in their 30 or however many years and retire with full pension benefits instead of having to wait until age 65 (when people can collect their full Social Security benefits).
Many companies offer some sort of early retirement package for employees, in part to make room for younger workers but also in part to cut down on the number of top-salaried people on the payroll. Such offers are not illegal and in fact can be beneficial to both the company and the employee. The issue takes a different turn when the employee is being pressured to accept an early retirement plan.
Setting a mandatory retirement age is illegal in most professions, although there are exceptions. Federal law recognizes ADEA exemptions in the case of such employees as air traffic controllers, federal police officers, airline pilots, and firefighters. In 1996 Congress passed legislation that allowed state and local governments to set retirement ages for these and similar employees to as young as 55. State and local judges are often required to step down at a certain age as well. In addition to mandatory retirement ages, many public safety jobs also have mandatory hiring ages, thus closing the door to potentially otherwise qualified people. The argument against mandatory retirement claims that it would be fairer to all employees to rely on periodic fitness testing, since some older workers may be just as able (or perhaps more so) to carry out their duties as younger ones.
Blatant discrimination is deplorable, but it is easy to spot and usually easy to determine accountability. More ambiguous, and thus more dangerous to older workers, is subtle discrimination. This can take many forms, and by its nature it is probably more pervasive than most people realize. Some examples are as follows:
- A longtime employee's supervisor makes comments in his or her presence about the benefits of retirement
- An employee whose company "restructures," and who subsequently ends up with a smaller office down a little-used corridor
- An employee who gets passed over for promotions, always in favor of younger staffers
- A worker who is reassigned to a job with fewer responsibilities, even if the assignment is considered a lateral move
- An employee who is no longer sent on business trips, provided membership in profes-sional associations, or encouraged to take job-related courses
What makes subtle discrimination so much more dangerous than blatant discrimination in the minds of many experts is that it is harder to prove. Perhaps the supervisor is making comments about retirement because he or she is looking forward to being retired. Maybe the employee who was passed over for promotions has never asked to be promoted and thus is considered to be lacking in leadership initiative. Subtle forms of age discrimination may make older workers uncomfortable or unhappy enough that they will retire, even though they may not be able to pinpoint actual discrimination as their reason for leaving. The bottom line, however, is that subtle discrimination is no more acceptable in the workplace than blatant actions directed at older workers. Determining the difference between innocent remarks or coincidence and true discrimination may be difficult, but an older worker who suspects discrimination should know that taking action is a viable option.
Older workers have legal protection from age discrimination. The Age Discrimination in Employment Act (ADEA) was passed by Congress in 1967. The ADEA extends the law as spelled out in the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, creed, color, religion, or ethnic origin. (Title VII of the Civil Rights Act is important to older workers who could suffer discrimination based on any of those factors as well.) Under the ADEA, workers age 40 and above are protected from discrimination in recruitment, hiring, training, promotions, pay and benefits, dismissal and layoffs, and retirement. The Older Workers Benefit Protection Act (OWBPA), passed in 1990, guarantees protection against discrimination in benefits packages. For example, OWPBA sets strict guidelines prohibiting companies from converting their pension plans in a way that would provide fewer pension dollars to older workers.
While the ADEA has been a critical factor in guarding against age discrimination, certain decisions by the U.S. Supreme Court have made it somewhat less effective. Part of the reason is that the Civil Rights Act of 1991, which amended Title VII of the 1964 Civil Rights Act, did not similarly amend the ADEA. Thus, although Title VII allows victims to recover compensatory and punitive damages since the 1991 amendment, the ADEA does not. Recent Supreme Court actions have suggested that using pension eligibility or high salaries as a basis for layoff decisions (a practice that generally has the greatest impact on older workers) may not be discriminatory.
In 2000, the Supreme Court ruled in Kimel v. Florida Board of Regents that states are protected from ADEA suits by individuals. Legislation was introduced in the U.S. Senate in 2001 that would require states agencies to waive their immunity from ADEA suits or else forfeit federal funding.
Most ADEA suits are based on charges brought before the Equal Employment Opportunity Commission (EEOC ). The EEOC is responsible for investigating charges of age discrimination and seeking remedies. Rarely does it file actual lawsuits (in fact EEOC litigation across the board dropped through the 1990s and into the twenty-first century), but individuals are allowed to sue on their own.
In 1995 the EEOC conducted a comprehensive review of its procedures and developed new National and Local Enforcement Plans. These plans provide guidelines for dealing with discrimination issues against older workers.
The EEOC has long suffered from inadequate funding, which limits its ability to investigate charges as quickly as it would like. As a result, EEOC chooses its lawsuits carefully to ensure maximum impact.
Under the law, not all age-related job exclusions are discriminatory. In fact, both Title VII and the ADEA recognize exclusions known as bona fide occupational qualifications (BFOQs) as legitimate. For example, a kosher meat market can legitimately require that it can hire only Jewish butchers. An employer seeking an BFOQ exclusion must be able to prove that those from within an excluded group would not be able to perform the job effectively. Thus, a moving company might be able to exclude a 75-year-old as a mover because moving requires heavy lifting and driving long distances. An accounting firm would be unable to make a similar claim in trying to force a 75-year-old bookkeeper to retire solely based on age.
Age discrimination has a twofold negative effect on older workers. The tangible effect is loss of a job or limited employment opportunities. Not only is it harder for an older worker to keep a job, it becomes harder for an older worker to find a new job. (Economic realities often dictate that early retirees may have to supplement their pensions before they turn 65 and collect their full Social Security benefits.) The psychological effect is that older workers become frustrated by their situation. If they are working, this could affect their productivity, which could feed the stereotypes about older workers. If they are looking for work, they may simply give up, believing that they are unemployable.
Individuals who think they are victims of age discrimination can turn to the local office of the EEOC for assistance. The EEOC will provide information about how to file charges at the state and federal levels. It is also useful to contact the state office of civil rights.
Older workers have a strong ally and resource in the form of AARP (formerly known as the American Association of Retired Persons). Founded in 1958, AARP had 35 million members across the country in 2001. AARP acts as an information clearinghouse for legislation and other materials, and it also serves as a powerful lobbying force at the federal and state level. Through its lobbying network, AARP seeks to get Congress to enact new laws, enforce existing laws, and revise flawed legislation. AARP is headquartered in Washington, D.C., but it has regional offices to serve at the local level. Its leadership works actively to combat all discrimination.
Aging and Competition: Rebuilding the U.S. Workforce. Auerbach, James A., and Joyce C. Welsh, editors, National Planning Association, 1994.
The Aging of the American Work Force. Bluestone, Irving, Rhonda J. V. Montgomery, and John D. Owen, editors, Wayne State University Press, 1990.
American Bar Association Guide to Workplace Law. White, Charles, Series Editor, Times Books, 1997.
601 E Street NW
Washington, DC 20049 USA
Phone: (202) 434-2257
Fax: (202) 434-2588
URL: http://w ww.aarp.org
Primary Contact: William Novelli, CEOM
1801 L Street NW
Washington, DC 20507 USA
Phone: (202) 663-4900
Fax: (202) 376-6219
Primary Contact: Cari M. Dominguez, Chairperson
409 Third Street, Suite 200
Washington, DC 20024 USA
Phone: (202) 479-1200
Fax: (202) 479-0735
URL: http://w ww.ncoa.org
Primary Contact: James P. Firman, President and CEO
330 Independence Avenue SW
Washington, DC 20201 USA
Phone: (202) 619-0724
Fax: (202) 260-1012
Primary Contact: Josefina G. Carbonell, Assistant
Secretary for Aging
Age Discrimination in Employment Act (1967)
Age discrimination in Employment Act (1967)
Excerpt from the Age Discrimination in Employment Act
(a) It shall be unlawful for an employer—
- to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual's age;
- to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status an as employee, because of such individual's age; or
- to reduce the wage rate of any employee in order to comply with this chapter.
The Age Discrimination in Employment Act (ADEA) (P.L. 90-202, 81 Stat. 602) forbids public and private employers to engage in discrimination in employment on the basis of age against persons over the age of forty. Employers cannot refuse to hire people over the age of forty, fire employees simply because they are too old, or make distinctions among employees on the basis of age. Moreover, the act prohibits retaliation against people who assert their rights under the statute. The act also covers unions and employment agencies but is rarely applied to them. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC). The act allows both the EEOC or a private person to sue for damages as well as injunctive relief.
The ADEA grew out of the congressional debate on Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. Instead of including age as one of the categories in the 1964 Civil Rights Act, Congress directed the secretary of labor to study the issues and then to submit specific proposals for prohibiting age discrimination. President Lyndon Johnson delivered a special message to Congress concerning older Americans.
Congress found that older workers were disadvantaged in their efforts to regain employment when displaced from jobs, that arbitrary age limits were commonplace, and that unemployment adversely affected the skill, morale, and employer acceptability of older workers. It also found, however, that age discrimination was rarely based on the sort of hostility behind other forms of discrimination, such as race or gender. Instead, it was based on stereotypes about older workers that were often unsupported by objective facts. In response, Congress passed the ADEA in 1967 to promote the employment of older workers and to prohibit arbitrary age policies in employment. The United States Supreme Court has held that the ADEA is a valid exercise of congressional power under the commerce clause of the U.S. Constitution but not under section 5 of the Fourteenth Amendment, which empowers Congress to enforce the nondiscrimination provisions of the Constitution.
There are several exceptions to the statute's nondiscrimination provisions. First, employers may use age as an employment criterion if they can justify its use. In other words, they must prove that "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." Under this exception, employers must show that age is a reasonable measure of a job qualification that is important to the employer's business. The courts have interpreted this as a very narrow exception to the general prohibition of age discrimination contained in the ADEA.
The second exception applies to employee benefit plans, such as health insurance and pension plans. Providing such fringe benefits to older workers costs employers more than providing them to younger workers (who, for example, tend to have fewer health problems). The application of the ADEA to pension plans and other fringe benefits is incredibly technical and complicated. It has been the subject of much litigation and congressional activity. Currently, the statute allows fringe benefit plans that provide unequal benefits for different age groups if the differences are justified by different employer costs or are part of a voluntary early retirement plan. For example, an employer can provide each employee with $1000 of health-care insurance even though that $1000 buys less protection for older employees.
Under the third exception, the act does not define elected officials and political appointees responsible for policy making as employees. And, although the statute was amended to expressly prohibit mandatory retirement, it does allow mandatory retirement (at age 65) of executives or other employees in high, policy-making positions. For the sake of public safety, a specific amendment also allows for maximum age and mandatory retirement (at age 55) of publicly employed firefighters and law enforcement officers.
EXPERIENCE UNDER THE ACT
The main question under the ADEA is when age distinctions are justified. Should the protection against age discrimination be taken broadly, that is, striking down most distinctions, or narrowly, allowing many distinctions? In general, the courts have interpreted the protections of the statute broadly but they have imposed fairly rigorous standards of proof.
Because the ADEA is modeled on Title VII of the Civil Rights Act, this statute expands our notion of civil rights beyond the traditional categories of race and gender. It has virtually eliminated mandatory retirement for most jobs and has changed the view of both employers and the public as to who is a qualified worker. It has dramatically increased employment among older workers.
The Age Discrimination Act of 1975 prohibits discrimination based on age in programs or activities that receive federal financial assistance. This statute is enforced primarily by the Office for Civil Rights in the Department of Education and does not cover employment discrimination. The 1975 act includes many exemptions. For example, it exempts age-based statutes enacted by elected bodies such as the minimum age to enroll in school. Because of the number of exceptions written into the statute, it has had limited impact.
See also: americans with Disabilities Act; Civil Rights act of 1964; Title IX Education Amendments.
Dobrich, Wanda, Steven Dranoff, and Gerald Maatman. The Manager's Guide to Preventing Hostile Work Environment: How to Avoid Legal and Financial Risks by Protecting Your Workforce From Harassment on the Basis of Sex, Race, Disability, Religion, and Age. New York: McGraw-Hill, 2002.
Matthews, Joseph L. Social Security, Medicare, and Pensions: The Sourcebook for Older Americans. Berkley, CA: Nolo Press, 1996.
The racial civil rights revolution of the 1950s and 1960s generated interest in constitutional protection for groups other than racial and religious minorities. Enhanced constitutional scrutiny of sex discrimination may be a consequence of the civil rights struggle.
Discrimination on the basis of age, however, has not become constitutionally suspect. In massacusetts board of retirement v. murgia (1976) the Supreme Court held that some forms of age classification are not suspect and sustained against equal protection attack a state statute requiring uniformed state police officers to retire at age fifty. In a per curiam opinion, the Court concluded that the retirement did not affect a fundamental right, and characterized the affected class as uniformed police officers over age fifty. Perhaps intending to leave open heightened scrutiny of some age classifications, the Court stated that the requirement in Murgia did not discriminate against the elderly. In light of its findings with respect to the nature of the right and the relevant class, the Court held that mere rationality, rather than strict scrutiny, was the proper standard of review in determining whether the statute violated the equal protection clause. It found that the age classification was rationally related to furthering the state's interest of protecting the public by assuring physical preparedness of its uniformed state police.
In Vance v. Bradley (1979) the Court, in an opinion by Justice byron r. white, again applied the rational basis test and held that Congress may require retirement at age sixty of federal employees covered by the Foreign Service retirement and disability system, even though it imposes no such limit on employees covered by the Civil Service retirement and disability system. In sustaining the mandatory retirement age, the Court emphasized Congress's special consideration of the needs of the Foreign Service. "Congress has legislated separately for the Foreign Service and has gone to great lengths to assure that those conducting our foreign relations will be sufficiently competent and reliable in all respects. If Congress attached special importance to high performance in these positions … it was quite rational to avoid the risks connected with having older employees in the Foreign Service but to tolerate those risks in the Civil Service."
But in the legislative arena, age discrimination did feel the effects of the constitutional egalitarian revolution. Section 715 of the civil rights act of 1964 required the secretary of labor to report to Congress on age discrimination in employment. In 1965 the secretary reported persistent arbitrary discrimination against older Americans. In 1967, upon the recommendation of President lyndon b. johnson, and relying on its powers under the commerce clause, Congress passed the Age Discrimination in Employment Act (ADEA). The act, which has been amended several times, prohibits employment discrimination against persons between the ages of forty and seventy.
In equal employment opportunity commission v. wyoming (1983), prior to its overruling of national league of cities v. usery (1976) in garcia v. san antonio metropolitan transit authority (1985), the Court sustained against a tenth amendment attack the constitutionality of Congress's 1974 extension of the ADEA to state and local governments. In a 5–4 decision, the Court found that applying the act's prohibition to a Wyoming mandatory retirement age for game wardens would not interfere with integral state functions because the state remained free to apply reasonable standards of fitness to game wardens.
Building on a provision in Title VII of the Civil Rights Act of 1964, the ADEA allows employers to take otherwise prohibited age-based action when age is a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business." In its early interpretations of this provision, the Court has not given the defense an expansive reading. In Western Air Lines, Inc. v. Criswell (1985), in an opinion by Justice john paul stevens, the Court held that Congress's "reasonably necessary" standard requires something more than a showing that an age-based requirement is rationally connected to the employer's business. Relying on the heightened standard, the Court therefore rejected an airline's defense of its requirement that flight engineers retire at age sixty. In Johnson v. Mayor & City Council of Baltimore (1985) the Court held that a federal statute generally requiring federal fire fighters to retire at age fifty-five does not establish that being under fifty-five is a bona fide occupational qualification under the ADEA for nonfederal fire fighters.
In the Age Discrimination Act of 1975 (ADA), following the racial antidiscrimination model of Title VI of the Civil Rights Act of 1964, Congress prohibited discrimination on the basis of age in programs or activities receiving federal financial assistance. The ADA thus joins Title IX of the education amendments of 1972 and section 504 of the rehabilitation act of 1973, which prohibit, respectively, sex discrimination and discrimination against the handicapped in federally assisted programs. The ADA vests broad authority in the secretary of health and human services to promulgate regulations to effectuate the statute's antidiscrimination mandate. Like the ADEA, the ADA contains exceptions allowing discrimination on the basis of age when age is reasonably related to the program or activity. Other specific federal spending programs contain their own statutory prohibitions on age discrimination.
Schuck, Peter H. 1979 The Graying of Civil Rights Law: The Age Discrimination Act of 1975. Yale Law Journal 89:27–93.
United States Department of Labor 1965 Report to the Congress on Age Discrimination in Employment under Section 715 of the Civil Rights Act of 1964. Washington D.C.: Government Printing Office.
Prejudicial treatment or denial of rights based on age.
Smith v. City of Jackson, Mississippi
Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §621 et seq. to protect older workers from arbitrary employment practices. Such practices that the act prohibits include, for instance, setting up age requirements unrelated to the ability needed for the job. The statute also addresses the problem of the increasing numbers of older workers who are unable to regain employment after job displacement, a situation resulting in deterioration of skills, morale, and employability. While similar in wording to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A, §§2000e et seq., the ADEA has some defenses and provisions uniquely applicable to age discrimination. One question that lingered concerned whether a plaintiff needed to prove that an employer intentionally discriminated on the basis of age (disparate treatment). Proving intent is usually very difficult, leading plaintiffs to argue that the ADEA allowed them to sue on the theory that the employer used a facially neutral test or other employment practice that unjustifiably resulted in discrimination against members of a protected group (disparate impact).
Although the Equal Employment Opportunity Commission (EEOC) had issued regulations allowing disparate impact in ADEA cases, the circuit courts of appeals were divided on this issue. The Supreme Court resolved the matter in Smith v. City of Jackson,Mississippi, __U.S. __, 125 S.Ct. 1536, __ L.Ed.2d __ (2005), holding that the ADEA did permit complaints based on disparate impact. The Court concluded that both the language of the statute and the EEOC regulations justified this interpretation. However, the Court also made clear that employers could rebut agediscrimination complaints if they could demonstrate that "reasonable" factors led to the allegedly discriminatory actions.
The case arose out of the actions of the Jackson, Mississippi, city government, when it gave raises to its police officers in 1999. The new pay plan, which sought to make the city's salary structure competitive with other municipalities, gave substantially larger pay increases to employees who had five or fewer years of tenure. This had an unfavorable effect on employees who had served on the force for many years and who were over the age of 40. A group of 30 officers and dispatchers filed an ADEA lawsuit, alleging that the pay plan discriminated against them on disparate-treatment and disparate-impact grounds. The federal district court dismissed the lawsuit on both counts, but the Fifth Circuit Court of Appeals reversed on the disparate-treatment ground. The appeals court believed that the employees were entitled to conduct discovery to see whether the city had intentionally discriminated against older workers. However, the appeals court affirmed the dismissal of the disparate-impact count, ruling that this theory of liability was not allowed under the ADEA. Smith v. City of Jackson, Miss., 351 F.3d 183 (5th Cir. 2003).
The U.S. Supreme Court unanimously ruled that the police officers' suit should be dismissed, but in a 5-3 vote (Chief Justice William Rehnquist did not participate due to illness) the Court overturned the disparate-impact ruling, holding that such suits were permitted under the ADEA. Justice John Paul Stevens, who at age 84 was the oldest member of the Court, wrote the majority opinion. Justice Stevens noted that when Congress wrote the Civil Rights Act of 1964, it rejected the inclusion of age-discrimination provisions but directed the Secretary of Labor to make a report on the issue. The secretary's 1965 report found that age-based employment discrimination existed, thus paving the way for the enactment of the ADEA in 1967. Many of its provisions were identical to Title VII's provisions, which banned discrimination based on race, religion, and sex. This similarity was important because Title VII permitted lawsuits based on disparate impact. An employment policy or action that appeared neutral but had the effect of disproportionately hurting a group of workers who were of the same race, sex, or religion could be illegal under Title VII. Justice Stevens concluded that Congress had intended to make the ADEA very similar to Title VII. Therefore, the body of law developed for disparate impact under Title VII could be applied to ADEA complaints.
Justice Stevens rejected the claim that the Court had previously ruled against disparate impact in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In that case, three justices had clearly stated that disparate-impact analysis had no place in agediscrimination suits, while the majority decision focused on the centrality of disparate treatment in such suits. Justice Stevens ruled that the Court had not specifically addressed disparate impact in Hazen, and therefore the Court was not precluded from applying disparate-impact liability. In addition, the EEOC had "consistently interpreted the ADEA to authorize relief on disparate-impact theory."
Having granted ADEA plaintiffs the right to claim disparate impact, the Court provided some relief to employers by emphasizing that they could defeat claims by asserting "reasonable" factors for decisions that penalized older workers. These factors included the city of Jackson's desire to bring its "salaries in line with that of surrounding police forces." In addition, the police officers could not identify "any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers." A generalized policy was not enough to sustain a disparate-impact claim. Therefore, the Court dismissed the disparate-impact claim on the merits of the case.