Elder Law Newsletter
Unlawful Age Discrimination in the Workplace
In 1967, Congress passed the Age Discrimination in Employment Act (ADEA). Goals of the ADEA include:
- Promotion of employment of older persons based on their abilities rather than age.
- Prohibition of arbitrary age discrimination in employment.
- Helping employers and workers meet employment problems arising from aging.
Scope and Application of the ADEA
While many states have age discrimination laws with differing procedures, provisions, and protections, this article focuses on the ADEA. The ADEA protects employees who are 40 years or older, subject to some exceptions and exemptions. The ADEA applies to the following entities:
- “Employers” engaged in an industry affecting commerce that has “20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” This includes state governments and related entities, but a U.S. Supreme Court decision in 2000 held that it is unconstitutional for Congress to abrogate a state's immunity. The term “employers” does not include the federal government or any corporation owned by it.
- “Employment agencies,” defined as persons or entities regularly procuring employees for an employer, with or without compensation, excepting agencies of the U.S. government.
- “Labor organizations” that deal with employers concerning worker grievances, pay, etc. and are engaged in an industry affecting commerce, providing they have 25 or more members or maintain a “hiring hall” or office that procures employees for an employer.
Conduct Prohibited by the ADEA
The ADEA makes it unlawful for covered employers “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” Employers are prohibited from acting to “limit, segregate, or classify” employees in ways that would deprive them of opportunities or adversely affect their employee status due to their age. Employers also cannot reduce wage rates, nor force involuntary retirement, because of advanced age.
Employment agencies are prohibited from “failing or refusing to refer for employment, or otherwise discriminate against, any individual” because of age or “to classify or refer for employment” any individual based on age. Labor organizations are prohibited from excluding or expelling, or otherwise discriminating against, any member because of age. It is further unlawful for them, based on advanced age, to: limit, segregate, or classify its membership; fail or refuse to refer for employment, any member; or in any way deprive an individual of employment opportunities or adversely affect employment status.
In addition, no such entity may discriminate because an individual has opposed an unlawful age discrimination practice or has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding or litigation related to age discrimination. Moreover, they may not publish, print or cause to be printed any advertisement or notice relating to employment that indicates any preference, limitation, specification, or discrimination based on age.
Exemptions from the ADEA Application
The ADEA provides exemptions under a number of specified circumstances, including:
- Where age is a “bona fide” occupational qualification, “reasonably necessary to the normal operation of the business,” e.g., airline pilots, required by law to retire at age 60.
- Where the different treatment is based on factors other than age, e.g., skills or ability.
- When the practices are required by foreign laws where the business is located.
- To observe the terms of a bona fide seniority system or certain benefit plans, which are not a subterfuge to avoid ADEA purposes and are justified by cost considerations.
- Nothing in the ADEA prohibits discharge or discipline for good cause.
- Compulsory retirement of bona fide executives or high policy makers who are not less than 65 years old, have held their positions for at least two years immediately before retirement, and are also immediately entitled to annual benefits totaling at least $44,000.
Enforcement and Remedies
Enforcement of the ADEA is mainly assigned to the U.S. Equal Employment Opportunity Commission (EEOC). Complaints, or “charges,” by aggrieved individuals must first be made with the EEOC on a form provided by it. The EEOC is then supposed to investigate the charges and decide on further action to be taken.
Both the EEOC and the victim may file a lawsuit to enforce ADEA rights and recover damages. The individual, however, cannot file suit until 60 days after the complaint was filed with the EEOC, and filing a lawsuit by the EEOC terminates the right of the individual to bring suit. A complaint must be filed with the EEOC within certain specified time periods after the alleged discrimination took place, which vary depending on whether the state where it occurred has age discrimination laws and state authority authorized to grant or seek relief for such discrimination.
The aggrieved person is entitled to a jury trial on fact issues. Remedies and damages may include: lost wages; reinstatement; additional damages, when the conduct is deemed “willful;” “front pay,” i.e., lost future wages under some circumstances; and attorneys' fees. In some states, punitive damages, to punish the wrongdoer and discourage future conduct, may also be awarded.
Record-keeping requirements under the ADEA
To assist in enforcement and investigation of charges, the ADEA requires employers, labor unions, and employment agencies to maintain certain records regarding employees, job-related actions, and hiring for a period of three years. The EEOC has the right to inspect such documents during business hours.
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