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Age Discrimination

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 agerelated 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.

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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 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 antidiscrimination policies and to have demonstrated business reasons for employment decisions that may adversely affect older workers.