Age Discrimination

Denial of privileges as well as other unfair treatment of employees on the basis of age, which is prohibited by federal law under the Age Discrimination Unemployment Act of 1967. This act was amended in 1978 to protect employees up to 70 years of age, and in 1986 to protect mandatory retirement.

Age discrimination is the practice of letting a person's age unfairly become a factor when deciding who receives a new job, 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. The problem of age discrimination appears to be widespread. A 2000 survey of more than 1,100 executives and 300 executive search firms by a Connecticut researcher found some startling admissions. Only 3 percent of the executives and 8 percent of the search firms said that "age was never a significant factor in hiring decisions." In addition, the survey found that the attention that executives are paying to age may be on the increase, despite strong government regulations against age discrimination. A second question revealed that 52 percent of the executives and 38 percent of the search firms—up from 45 percent and 21 percent, respectively, from just a year earlier—felt that "age becomes a key factor in job searches at or below the age of 50."

The Adea

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 regards 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 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 which employees are covered. Jobs that involve the public safety, such as police and fire work, 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 employer 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, and the waiver must be "knowing and voluntary," meaning that it must be in writing; must refer to the specific portions of the ADEA that were applicable to this case; must 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; must recommend, in writing, that the employee has the right to consult an attorney; must indicate that the employee has 21 days to sign the waiver; must be revocable for seven days after being signed by the employee; and must 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 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 a 40-year employee, 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. Some of the state laws are practically powerless, in fact. Near the end of 2000, two senators introduced legislation called the Older Workers Rights Restoration Act that would withhold federal funds from all states that did not sign a waiver allowing state employees to sue for damages under the ADEA.

Further Reading:

"Age Discrimination: Past, Present, Prologue." Trial. December 2000.

"Aging Angst." Association Management. November 2000.

Spero, Donald J. "An Overview of the Age Discrimination in Employment Act." Florida Mediation Group Web site (http://www.floridamediationgroup.com/articles/ADEA.html). September 27, 2000.

"Suspect Age Bias? Try to Prove It." Fortune. February 1,1999.

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 forty 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 forty, 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.

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.

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, 86 L. 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 sixty. 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 sixty, 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 [1985]). 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 sixty 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, 110 S. 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 early-retirement 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 the importance to the employer of following the guidelines to the letter. Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993), cert. den. ___U.S. ___, 114 S. Ct. 2104, 128 L. Ed. 2d 665 (1994), 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).

Two 1991 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 sixty-two 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.

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 Department of Treasury 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.

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 sixty-two-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, here 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 district court jury found that Biggins had proved his case of age discrimination and that the employer's reason for his dismissal was a pretext. It further stated that a termination for the purpose of avoiding pension rights violates the ADEA. Finally, the jury ruled that Hazen Paper Company had acted willfully, thus allowing an award of liquidated damages (damages in an amount fixed by statute or contract). On a posttrial motion by Hazen, the court struck the "willfulness" finding. On appeal to the Court of Appeals for the First Circuit, the finding of age discrimination was affirmed and the willfulness finding reinstated (Biggins, 953 F.2d 1405 [1992]).

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, will not be enough to prove the claim.

Other Developments in Age Discrimination in Employment

In an interesting twist, the New York office of the EEOC announced in 1994 that it was investigating several law firms for age discrimination. Because the firms advertised for lawyers from a specific graduating class, or with a certain range of years of experience, they may have been artificially eliminating older attorneys from their pools of applicants. The agency was investigating whether this practice violated the ADEA.

Studies have shown that older applicants do face discrimination in finding a job. In one study conducted by the American Association of Retired Persons, identical résumés, in which the only difference was the applicant's age, were sent to 775 large corporations. The study found that the companies discriminated against the fictional older applicant 26.5 percent of the time.

Age Discrimination Outside Employment

Age discrimination is not limited to the workplace, nor is it experienced only by those over age forty. 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 eighteen and twenty-five (People by Koppell v. Alamo Rent A Car, Inc., 162 Misc. 2d 636, 620 N.Y.S.2d 695 [1994]). 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.

Reverse Age Discrimination?

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 seventy, 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.

See: Affirmative Action; Discrimination; Equal Employment Opportunity Commission; Seniority.