Age discrimination is one of the fastest-growing areas of employment law. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with administering the law, has received upward of 19,000 claims of age discrimination per year over the past several years. This growth is most attributable to the increasing number of aging employees in the workplace, the overall economic conditions of the country, and resulting employment layoffs and plant closures, which many times disproportionately affect older Americans.
The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623(a)(1)-(d), protects employees from discrimination in the workplace because of their age. The policy behind the ADEA is to protect older workers from stereotypes that they are inefficient or that because of their age, they can no longer perform at the same level as younger workers. The ADEA prohibits discrimination against employees in hiring, firing, or other terms and conditions of employment if they are 40 years of age or older. Individuals under 40 years old do not have a claim under the federal law.
However, many state laws allow for claims of age discrimination regardless of the individual’s age. Private employers of 20 or more persons, state and local governments, employment agencies that serve covered employers, and labor unions with 25 or more members are required to comply with the terms of the ADEA. There are, however, several exemptions to the law, including some high-level managers and bona fide executive or high-policy-making positions; uniformed military personnel; public safety personnel (police, firefighters, and prison guards); and individuals appointed by elected officials who serve in a policy-making capacity. In those cases, depending on the circumstances, an employer may be permitted to base employment decisions on an employee’s age.
Generally, however, employers are prohibited from taking any adverse employment action against an individual “because of” his or her age. Adverse actions come in many forms and may include the following: firing, refusing to hire, pay cuts, demotions, transfer, discipline or reprimand, and undesirable reassignment. Employers are also prohibited from the following: limiting, segregating, or classifying employees in a way that would deprive the employee of job opportunities or adversely affect employee status; reducing the wage rate of an employee in order to comply with the ADEA; indicating any preference, limitation, specification, or discrimination based on age in a notice or advertisement for employment; or operating a seniority system or employee benefit plan that requires or permits involuntary retirement. A person who is unlawfully discriminated against because of his or her age is entitled to damages, including loss of income, emotional distress, and, potentially, attorneys’ fees. In addition, depending on the egregiousness of the violation, the court may double the damage award or even award triple damages.
In cases of alleged age discrimination, employees can meet a prima facie burden by using direct evidence of differential treatment based on age. This could be in the form of an admission on the part of a representative of the employer that the individual is “too old” to perform the job, though this kind of statement is rarely made. Sometimes individuals do make statements or deliver messages that suggest that the company would prefer a younger “face” to its workforce or a particular job or that the company needs a “fresh outlook” on a particular project. Many times, the court will look at these facts not as direct proof, but as circumstantial evidence of animus because of an individual’s age.
In the absence of direct evidence, an employee who files a suit claiming age discrimination may depend largely on statistics showing disparate treatment directed at older employees. However, merely replacing an older employee with a younger person does not establish age discrimination. Similarly, it is not necessarily illegal to replace an older employee with a high salary with a younger person earning a lower salary. However, these two factors weigh heavily in whether an employee is able to prove a claim of age discrimination under the act.
Employers have several defenses to age discrimination claims. An employer may be able to justify an adverse employment action because of some legitimate, nondiscriminatory reason. Many times, good cause, legitimate business decisions, and reasonable factors other than age are mentioned as reasons for an adverse employment action. Under the ADEA, if an employer is able to show that although age may have been a motivating factor in an employment decision, the employer would have made the same decision anyway, the employer can escape liability.
Much of the recent litigation in connection with age discrimination claims involves an amendment to the ADEA called the Older Workers Benefits Protection Act (OWBPA), 29 U.S.C. § 626(f). The OWBPA sets forth certain rules regarding the waiver of an employee’s rights under ADEA. Under OWBPA, waivers of the right to sue for age discrimination must be knowing and voluntary and therefore must (a) be a part of a written, clearly understood agreement between the individual and the employer; (b) refer specifically to rights or claims arising under the ADEA; (c) exclude waiver of any rights and claims arising after the date of the waiver; (d) include the exchange for consideration, something of value to which the individual is not already entitled; (e) advise the individual to consult with an attorney; (f) provide 21 days for the individual to consider the waiver and allow 7 days for the individual to revoke the waiver. (If it is offered to a group or class as a part of a termination program or acts as an incentive, a waiver must allow 45 days for consideration and provide additional statistical information to the employee for a waiver of his or her ADEA rights to be affected.)
The purpose behind the OWBPA is to ensure that older workers are not taken advantage of when being laid off and/or terminated from employment by being rushed into severance agreements that require them to waive their rights to pursue age discrimination claims.
To meet this end, an employer must, among other things, allow for a sufficient amount of time for the individual to review the agreement and obtain advice from an attorney in connection with the terms of the agreement. Employers must be very careful in drafting releases so that they effectively waive claims under the ADEA, because under certain circumstances, employees may be permitted to execute such releases and ultimately sue and recover not only money entitled to them under the agreement, but any amount of damages rewarded in the age discrimination claim.
Age discrimination is often hard to prove unless there is some incontrovertible evidence that the employer acted “because of” age. No employer would admit that an employment decision was based on an individual’s age. Laws prohibiting age discrimination are very effective as a deterrent to ensure that an employer does not use age as a factor in making employment decisions unless it is justified by a legitimate business reason recognized by the law.
- Gold, M. E. 2004. “Disparate Impact under the Age Discrimination in Employment Act of 1967.” Berkeley Journal of Employment Labor and Law 25:1-86.
- Grossman, R. J. 2005. “The Under-reported Impact of Age Discrimination and Its Threats to Business Vitality.” Business Horizons 48:71-78.
- Tobias, P. H. 2002. “Age Discrimination Laws in the United States.” Employee Rights Quarterly 3:20-30.