United States: Age Discrimination In Employment Act - 2015

The average lifespan of Americans is approaching 80 years. The ratio of older adults to younger adults is rising. And as the population changes, the workplace changes too. Some employees are choosing to work longer. Others are using their longer and healthier lifespan to pursue a sec­ond career. Still others find themselves in need of a job during a longer and healthier lifespan to pursue a second career. Still others find themselves in need of a job during a longer than expected retirement. As these changes occur, employers are increasingly faced with new challenges in employing older workers. It is now more essential than ever for employers to understand the laws prohibiting age discrimination in employment.

In 1967, Congress passed the Age Discrimination in Employment Act, commonly referred to as the ADEA, which protects individuals 40 and older from discrimina­tion in the workplace based on age. In 1990, Congress passed the Older Workers Benefit Protection Act, or OWBPA, which amended the ADEA to prohibit employers from denying benefits to older workers. Together the ADEA and the OWBPA amendments comprise the federal law that protects older employees from workplace discrim­ination.

Both laws will be discussed in this booklet. Many states also have laws protecting workers against age dis­crimination in the workplace, which this booklet does not address. Some state laws closely parallel the ADEA, but other states have enacted more restrictive age discrimi­nation protections. Employers must ensure compliance with the laws of the states in which they operate, in addi­tion to the ADEA and OWBPA.

The ADEA is separate and distinct from another prin­cipal law governing discrimination in employment – Title VII of the Civil Rights Act of 1964 – which protects indi­viduals against discrimination on the basis of race, color, national origin, sex and religion. Certain aspects of Title VII and the ADEA are similar, but the two laws are not duplicative in every respect. To fully understand the reach of protections for older workers and the set of laws governing age discrimination in the workplace, employ­ers must familiarize themselves with both the general principles behind the ADEA and its specific provisions.

To assist you in understanding these laws, this booklet first explains the basic principles of the ADEA. It then discusses specific types of age discrimination and what type of related conduct falls outside of illegal age discrim­ination. Next, the booklet addresses retaliation restric­tions, age harassment and the legality of reverse age discrimination. It then explores several special consider­ations and unique situations under the ADEA. Of course, the discussion is intended only as a general overview of the most important aspects of this law, not as legal advice for any specific factual situation.

FUNDAMENTAL CONCEPTS

"It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with age." – United States Supreme Court in Hazen Paper v. Biggins

The ADEA applies to employers in industries affecting commerce with 20 or more employees in the current or preceding calendar year. Leased employees, overseas employees and employees of integrated companies count for the 20 employee threshold, but temporary employees do not.

The ADEA prohibits employers from discriminating against employees and applicants, who are 40 years old or older, based on age. Specifically, the ADEA makes it unlawful to discriminate against these persons because of their age with respect to any term or condition of employment, including hiring, firing, compensation, lay­offs, promotions, compensation, benefits, job assign­ments and training.

This includes discrimination against an employee over the age of 40, or in favor of a worker who is 40 years old or older, but substantially younger than the employee claiming the discrimination.

Example: Maria, a 56-year old employee is refused a promotion. She may be able to show that her employer discriminated against her by promoting Paul, an employee who is 42 years old, even though Paul also falls within the protected age category established by the ADEA.

The following are examples of the type of conduct that violates the ADEA:

• a supervisor's refusal to promote older employees  because they are "too old" or assuming they will be  retiring soon;
• a company-wide decision to lay off all older employees as part of an effort to promote a youthful company image and culture;
• implementing a health benefit program for retirees that reduces benefits at age 65; or
• awarding bonuses to all employees under 35 years of age because the company values younger employees more than older employees.

The ADEA also makes it unlawful to retaliate against an applicant or employee for conduct related to age dis­crimination. Protected conduct includes opposing a dis­criminatory employment practice, filing an age discrimination charge, or testifying or participating in an investigation, proceeding or litigation involving age dis­crimination. The following acts are some examples of unlawful retaliation:

• firing an employee because he complained that his supervisor did not consider him for a promotion because of his age;
• denying an annual bonus to employees because they testified in support of a lawsuit brought by a former employee claiming age discrimination.

TYPES OF AGE DISCRIMINATION

The ADEA prohibits two different types of discrimination – disparate treatment and disparate impact. Disparate treatment discrimination occurs when an employer inten­tionally treats an employee or applicant 40 years old or older less favorably than a younger employee or applicant because of his or her age. Disparate impact discrimina­tion occurs when an employer implements or maintains a policy that has an adverse impact on employees 40 and older even though the policy or practice itself has nothing to do with age.

A. Disparate Treatment

Under the ADEA, employers cannot treat employees 40 or older less favorably than younger employees because of their age. This means that you cannot refuse to hire, demote, fail to promote, fire, pay less, refuse to train, or provide reduced benefits to employees over 40 because of their age. To understand how to avoid treating employees less favorably because of their age, it is helpful to look at the types of evidence that employees use to show age dis­crimination.

The most obvious evidence that an employee might use to establish age discrimination is a decision-maker's statement that he or she treated an employee adversely because of the employee's age. For example, assume that Tom is a 52-year old employee who does not receive a pro­motion he was hoping for. He asks the manager who made the promotion decision for the reason, and is told the fol­lowing:

This statement is direct evidence of age discrimination because it ties the negative treatment directly to the employee's age.

But direct evidence rarely exists. The more common evidence of age discrimination is much more subtle. It often involves either negative comments made about or to older workers or favorable remarks made about or to younger workers, but not directly tied to the employment decision. This type of evidence is often referred to as cir­cumstantial evidence because the underlying circum­stances suggest that something is true, but do not directly prove that it is true.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.