Age Discrimination in Employment Act

act that prohibits employers from requiring employees to retire at age 70. Also, the act prohibits Employee Benefit Plans from discriminating against employees in the 40 to 70 age group as to contributions or benefits.

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 roots of the ADEA 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 25 or more members are covered. The ADEA protects against age discrimination in many employment contexts, including hiring, firing, pay, job assignment, 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 employees from limiting, segregating, or classifying an individual in a way that adversely affects their 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 meeting problems arising from the impact of age on employment. As a result, the Act authorizes the Secretary of Labor to performs 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 EEOC or with an appropriate state agency. The EEOC may also sue to enforce the ADEA. For both government and private suits, the statute of limitations is three years from the date of an alleged willful violation and two years from the date of an alleged nonwillful 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 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 compiled by the Office of Research, Information, and Planning from 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 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 will mean older workers in protected classes will be working longer than before. In Supervision, Mary-Katherine 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. Damaged 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 issue facing employers in this realm is 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 workers.

"To equalize their costs for [Medicare-eligible and younger retirees], employers' choices are limited," contended Business Insurance. "One option would be to add a whole slew of health care-related benefits for Medicare-eligible retirees. Obviously, though, that wouldn't be very practical, as employers already are struggling to restrain the costs of their existing benefit programs and would not want to increase their costs by expanding benefits. Another alternative would be to equalize benefits for the two groups, but that, too, would not be very practical…. Many [employers] would terminate health care plans for both groups of retirees." Given these scenarios, business groups have urged legislators to amend the ADEA, adding language that explicitly excludes retirement health care benefits as an element of the act.

Further Reading:

Geisel, Jerry "Court Broadens Scope of ADEA" Business Insurance. August 14, 2000.

"Congress Must Fix ADEA." Business Insurance. September 4, 2000.

Metzger, M.B., J.P. Mallory, A.J. Barns, T. Bowers, M.J. Phillips, and A. Langvardt. Business Law and The Regulatory Environment. McGraw-Hill, 1997.

Zachary, Mary-Kathryn. "Age Discrimination—Part I: The State Employee." Supervision. July 2000.

Zachary, Mary-Kathryn. "Age Discrimination—Part II: The Private Employee." Supervision. September 2000.

Zall, Milton. "Age Discrimination—What Is It Besides Illegal?" Fleet Equipment. April 2000.

The Age Discrimination in Employment Act (ADEA) was enacted in 1967 in response to findings commissioned by the Civil Rights Act of 1964 that many employers maintained inaccurate and stigmatic stereotypes about older workers that decreased their ability to find and retain work. The main provision of the ADEA makes it unlawful for an employer to discriminate against any individual who is forty years old or more “in the conditions, or privileges of employment, because of such individual's age,” but differential treatment is nonetheless lawful when it is based on “reasonable factors other than age” or is a result of certain seniority systems or employee benefit plans (and in a few other situations). The substantive antidiscrimination provisions of the act track generally those of Title VII of the Civil Rights Act of 1964 (which governs race and sex discrimination), whereas the act's enforcement and remedial provisions tend to parallel those of the Fair Labor and Standards Act.

Since its enactment, the ADEA has aided older employees by diminishing arbitrary age‐based discrimination in virtually all aspects of employment, including hiring, firing, promotions, terms of compensation, and job referrals, as well as by banning age‐based harassment and retaliation for filing an ADEA charge. Consequently, employers treat older employees more cautiously, carefully document non‐age‐related justifications for employment actions, and commonly use incentive programs to reward workers for retiring and waiving any potential ADEA claims.

Over the years, the scope of the ADEA's coverage has increased. Whereas individuals older than sixty‐five were originally not covered by the act and were often forced to retire involuntarily, amendments to the act removed this age ceiling in most situations and greatly narrowed the circumstances in which mandatory retirement plans would be permitted. Other amendments specify minimum standards that a waiver of ADEA liability signed after 15 October 1990 must meet to qualify as “knowing” and “voluntary” and therefore enforceable.

In most states, the ADEA supplements age discrimination laws already in place. Additionally, there is substantial overlap between the ADEA and the Americans with Disabilities Act (ADA) because of various age‐correlated disabilities, although the ADEA, unlike the ADA, does not require employers to provide “reasonable accommodations. ” Likewise, the ADEA overlaps with the Employee Retirement Income Security Act, as both statutes are implicated by employer actions affecting retirement and pension plans.

ADEA cases in the Supreme Court have varied in their focus. Although some cases have merely involved interpretation of the act itself, such as Hazen Paper Co. v. Biggins (1993), in which the Court held that intentional age discrimination is not established when an employer acts on the basis of a factor that is merely empirically correlated with age, other cases have used the act more instrumentally, such as those decisions using the ADEA as a means to explore broader issues of federalism (see Kimel v. Florida Board of Regents, 2000; Gregory v. Ashcroft, 1991; and Equal Opportunity Employment Commission v. Wyoming, 1983).

Bibliography

• Barbara T. Lindemann and David D. Kadue, Age Discrimination in Employment Law (2003)

— Nickolai Gilford Levin

Excerpt from the Age Discrimination in Employment Act

(a) It shall be unlawful for an employer—

1. 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;
2. 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
3. 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.

Background

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.

Exceptions

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.

Related Act

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.

Bibliography

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 forOlder Americans. Berkley, CA: Nolo Press, 1996.

Internet Resources

U.S. Equal Employment Opportunity Commission. .

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