AGE DISCRIMINATION

Age discrimination occurs when individuals are treated differently because of their chronological age. Children and youth are routinely treated differently than adults. They are required by law to attend school and denied the legal right to vote, drink alcohol, and work. This type of age discrimination is justified because of children's immaturity. Although people debate the chronological age that should be used to define adult status, few question the desirability of treating children differently than adults. Chronological age also is used to discriminate in favor of older people. Old age often entitles people to reduced taxes and discounts on drugs, admission fees, or bus and airline tickets. Medicare provides older people with national health insurance and Supplemental Social Security provides a guaranteed minimum income for older people. Discussions of age discrimination, however, seldom focus on the restrictions of children's rights or special privileges for older people. Rather, the primary concern of age discrimination involves situations where older people are treated in unfair and negative ways because of their advanced age. The following discussion focuses on the two most widely recognized areas of discrimination against the old—in employment and health care—but also addresses discrimination in driving laws and interpersonal interactions.

Employment and the ADEA

In 1967, three years after it enacted the Civil Rights Act prohibiting workplace discrimination on the basis of race, color, national origin, religion, or sex, the U.S. Congress passed the Age Discrimination in Employment Act (ADEA). This law and its amendments made it unlawful for employers of more than twenty workers to discriminate against a person past age forty because of his/her age. The ADEA of 1967 protected employees between ages forty and sixty-five against workplace discrimination in such areas as hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The Department of Labor initially enforced the law, but in 1978 enforcement authority was transferred to the Equal Employment Opportunities Commission (EEOC), the agency responsible for overseeing other federal laws against discrimination in the workplace. The 1978 ADEA amendment prohibited mandatory retirement or other forms of age discrimination before age seventy (instead of sixty-five). The rather obvious illogic of allowing discrimination at chronological age seventy but not at sixty-nine was corrected in 1986 when ADEA was extended to cover all ages past forty. Several occupation-specific exceptions to the ADEA protection are permitted, so that commercial airline pilots, air-traffic controllers, and public safety officers may be required to retire at set ages (fifty-five or sixty). Despite a court challenge by pilots, the Supreme Court in 1998 left intact the Federal Aviation Administration regulation requiring retirement at age sixty. In 1990, Congress again amended the ADEA with passage of The Older Workers Benefit Protection Act (OWBPA). This legislation addressed concerns that businesses were subtly practicing age discrimination by offering early retirement incentive programs (ERIPs) to entice older, high salary workers to leave voluntarily. The OWBPA set conditions that ERIPs must meet to avoid being challenged as age discriminatory and established minimum standards that employers must meet to request that employees voluntarily agree to waive their rights or claims under the ADEA.

The ADEA legislation responded to employers' rampant and blatant discrimination against older people. Before this legislation it was common for employers to include age restrictions in help wanted advertising (e.g., soliciting applicants under thirty-five) and to require workers to retire at a fixed chronological age (e.g., sixty-five). Passage of a law forbidding discrimination on the basis of age, however, has not eliminated age discrimination. To be sure, age discrimination now tends to be less overt than it was before the ADEA. Nevertheless, throughout the 1990s an average of more than fifteen thousand charges of age discrimination were filed annually with the EEOC. The actual number of instances of age discrimination, however, is estimated to be many times larger. Although employers routinely favor hiring younger applicants over older ones (past age forty), formal charges of this type of discrimination are uncommon. Furthermore, approximately 90 percent of all age discrimination charges are settled before official complaints are filed.

The starting point for an individual who believes that his or her employment rights have been violated is to file a charge of discrimination with the EEOC (or with a state fair employment practices agency if a state age discrimination law exists). Until a charge has been filed with the EEOC, a private lawsuit charging violation of rights granted by the ADEA cannot be filed in court. Once filed, the EEOC can handle age discrimination charges in a number of ways: it can provide mediation, seek to settle the charges if both parties agree, investigate a charge and dismiss it, or investigate and establish that discrimination did occur. When it establishes that discrimination occurred, the EEOC will attempt conciliation with the employer to remedy the situation. If unable to conciliate the case successfully, the EEOC has the option of bringing suit in federal court or of closing the case and giving the charging party the option of filing a lawsuit on his or her own behalf.

Because enforcement of the ADEA raises many complicated issues, a number of court decisions have tried to define its reach. A complete history of legal battles cannot be given here, but two Supreme Court rulings illustrate the types of issues that arise. First, the Supreme Court decision in January 2000 in Kimel v. Florida Board of Regents dealt with the constitutional issue of whether or not the federal legislation applied to state governments. Kimel had charged that Florida State University violated the ADEA by discriminating against older workers in making pay adjustments. The Supreme Court ruled that the ADEA did not apply to state government employees, so Kimel could not sue the state in federal court. A few months later, in June 2000, the Supreme Court decision in Roger Reeves v. Sanderson Plumbing Products, Inc. established that direct evidence of intention to discriminate was not required to convict an employer of age discrimination. The Court held that it is adequate to establish that the employer's stated reason for the action was untrue and that prima facie evidence, such as managers' ageist comments, suggest discrimination. The first ruling restricted the reach of the ADEA, but the second one made it easier for employees to win discrimination cases against their employers.

The occurrence of age discrimination in the workplace depends both on the demand for labor in the marketplace and employers' perceptions of older people's competence. A tight labor market, for example, discourages employers from practicing age discrimination. Several studies have examined management attitudes toward older workers. An AARP-funded survey interviewed senior human resource executives in four hundred companies in 1989, and Louis Harris and Associates interviewed over four hundred senior human resource managers in a 1992 survey. Both of these studies, as well as earlier ones, found that despite generally positive attitudes expressed toward older workers by the "gatekeepers" of employment, two areas of concern were widespread. First, there was a pervasive perception that older workers were more costly because of health care, pensions, and other fringe benefits. The perceived and real costs of providing benefits can serve as an economic incentive to discriminate against older workers. Second, there was a widespread perception of older workers as less flexible, less technically competent, and less suitable for training. Studies of older workers tend to refute the stereotypical view that they are less productive than younger workers. Although some physical and mental capacities decline with age (e.g., speed and reaction time), these changes tend to be small until advanced ages and may be compensated for by greater experience. At every age there is wide diversity of abilities and learning potential, so basing employment decisions on job-related criteria rather than arbitrary and misconceived notions about age is a fairer and more efficient use of people's skills.

Since the 1960s much effort has gone into protecting older workers' rights. Despite the failure of this legislation and litigation to end all unfair treatment of older people in the workplace, this issue has received far more attention in the United States than in Japan and most European countries where blatant age discrimination in employment is still accepted.

Older patients in the health care system

In the world of medicine, older people are routinely treated differently than younger people. Older patients tend to receive less aggressive medical treatment than younger patients with the same symptoms. A 1996 study, for example, found that older women are less likely to receive radiation and chemotherapy after breast cancer surgery, even though they are more likely than younger women to die from the disease. In 1997 the U.S. General Accounting Office reported to Congress that most of the Medicare beneficiaries diagnosed with diabetes are not receiving the recommended blood tests, physical exams, and other screening services to monitor the disease. Although anticlotting therapy has been shown to reduce the risk of death among heart attack patients, older patients are less likely than younger patients to receive this treatment. Patients over age seventy-five are more likely than younger patients with the same severity of illness to have donot-resuscitate orders in intensive care units. Older patients are also undertreated for mental health services, preventive care, rehabilitative services, and primary care.

Several factors contribute to the discrimination older people face in the health care system. First, many health professionals adhere to the traditional view of aging as a continual process of decline. Unaware of the distinction between processes of normal aging and disease, they frequently dismiss older patients' complaints and symptoms. Physicians, for example, may write off older adults' symptoms of depression as part of the normal aging process and therefore fail to refer them for psychiatric assessments. Furthermore, doctors often prefer using their skills to cure acute illnesses rather than managing chronic diseases and rehabilitation. Because chronic conditions are much more common among the old than the young, physicians trained to focus on discrete causes of diseases and their cures may ignore the opportunity to intervene and improve older patients' quality of life.

Robert Butler has criticized the medical profession for not investing more research into the chronic diseases of older persons. Chronic conditions that slowly and permanently reduce older people's physical functioning may be less spectacular than acute conditions, but they are more far-reaching than the diseases that have been more intensively researched. Older adults have been poorly represented in other medical research and funding priorities as well. Few research studies, for example, definitively show that specific treatments are beneficial to older patients. Without the empirical evidence of treatments' effectiveness on older adults, physicians may not prescribe certain interventions.

Poor communication between patient and doctor is another contributor to the undertreatment of older adults. Research has shown that doctors are more responsive, egalitarian, patient, respectful, and optimistic with younger patients than with older patients. Communication problems also arise because older patients are more likely to be passive and accept their physicians' diagnoses without question.

Finally, educational institutions contribute to biases against older people in the health care system. Although treating the elderly, especially the very old, can be remarkably different from treating younger patients, medical students are rarely trained to handle the multiple and complex medical problems of older adults. One study, for example, found that the average physician's knowledge of aging was equivalent to that of college undergraduates (West and Levy). As a result, there is a critical shortage of geriatricians, or doctors specially trained to deal with older adults' unique health problems. Further, textbooks that focus almost exclusively on problems of aging and underreport successes expose students to narrow views of the aging process.

The aging of the population will likely compound these problems in the coming decades as the numbers of people needing acute and long-term care increase dramatically. Older Americans comprise less than 13 percent of the U.S. population but account for about one-third of health care expenditures every year. One of the central questions facing the United States is how the health care system will handle a growing elderly population. One proposal addressing this challenge would limit health care provided to people above a certain age. Philosopher Daniel Callahan, for example, argued in his controversial 1987 book Setting Limits that the very old should not receive expensive health care services. Former Colorado governor Richard Lamm went even further in his oft-quoted statement that older persons "have a duty to die and get out of the way." Although few Americans would withhold health care to someone solely on the basis of age, there are many supporters of preferentially allocating medical services to younger patients. They view health care as a limited resource that must be allocated to achieve the greatest good for the greatest number of people. Proponents of age-based rationing argue that chronological age is an ethical, objective, and cost-effective criterion for allocating health care because older people have already enjoyed life and have less life to enjoy. The greatest challenge to age-based rationing of health care, however, is that there is no necessary correlation between age and physical health. Everyone does not age at the same rate, making age-based rationing of health care a prime example of discrimination against older adults.

Older drivers

Age discrimination is also evident in attempts to restrict older adults' driving. Although most older people are safe drivers, elderly persons are involved in more fatal crashes per miles driven than all but the youngest, most inexperienced drivers. Drivers eighty-five or over are more than ten times as likely to die in a crash than are drivers between the age of forty to forty-nine. Over the next several decades the number of older drivers is expected to double and the number of elderly traffic fatalities is predicted to triple. Concern that older drivers pose a risk to themselves and others leads some politicians to propose ending driving privileges at a set age, such as seventy-five or eighty-five. More common, however, are proposals to treat the licensing of older drivers differently. At least twelve states and the District of Columbia already do this, requiring older drivers to have more frequent vision tests and license renewals. A 1999 Missouri law uses ability rather than age to identify those who are at high risk of being involved in accidents. This law has drawn wide support because it acknowledges that using chronological age to restrict people's options ignores the diversity of older people's individual capabilities.

Interpersonal interactions and social segregation

Many older adults experience subtle forms of age discrimination when they interact with others. Older people in American culture are often devalued, avoided, and excluded from everyday activities. They may be segregated from children and younger adults and overlooked as candidates for useful work, either paid or unpaid. The role losses that typically accompany old age reduce older adults' social contacts and recognition. Older persons, for example, are sometimes excluded from family conversations or addressed in a patronizing manner. Religious institutions worried about attracting young people often neglect older members' needs. Churches and synagogues rarely structure their programs, budgets, and services to permit all age groups to participate equally. Older adults are also spatially segregated from other age groups in nursing homes and retirement communities. Even organizations that attempt to counter older adults' social rejection further serve to isolate them in seniors' centers and clubs. Thus, age discrimination functions not only blatantly in employment, health care, and driving laws, but also subtly in interpersonal relationships.

Conclusion

Prejudice and stereotyping lead to age discrimination that can affect everyone. It disadvantages older workers, resulting in an ineffective use of human resources. Ageist beliefs influence health care providers' professional training and service delivery, which in turn negatively affect older patients' treatment and health outcomes. Narrow views of aging lead people to ignore substantial differences among older adults' driving abilities and to underappreciate their social needs. Ongoing education is needed to inform those in power that age is a poor predictor of performance and ability and should not be a basis of discrimination.

Peter Uhlenburg Jenifer Hamil-Luker

See also Age-Based Rationing of Health Care; Ageism; Age Integration and Age Segregation; Driving Ability; Job Performance.

BIBLIOGRAPHY

Administration on Aging. Mobility and Independence: Changes and Challenges for Older Drivers. Available on the Internet, www.aoa.dhhs.gov

American Association for Retired Persons. Business and Older Workers: Current Perceptions and New Directions for the 1990's. Washington, D.C.: AARP, 1989.

Butler, R. "Dispelling Ageism: The Cross-Cutting Intervention." Annals of the American Academy of Political and Social Sciences 503 (1989): 138–147.

Callahan, D. Setting Limits: Medical Goals in an Aging Society. New York: Simon and Schuster, 1986.

Crown, W. H., ed. Handbook on Employment and the Elderly. Westport, Conn.: Greenwood Press, 1996.

Equal Employment Opportunities Commission (EEOC). Facts About Age Discrimination. Available on the Internet, www.eeoc.gov

Falk, U. A., and Falk, G. Ageism, the Aged and Aging in America. Springfield, Ill.: Charles C. Thomas Publisher, Ltd., 1997.

Goldberg, B. Age Works: What Corporate America Must Do to Survive the Graying of the Workforce. New York: The Free Press, 2000.

Graves, J. "Age Discrimination: Developments and Trends." Trial 35 (February 1999): 58–63.

Massie, D.; Campbell, K.; and Williams, A. "Traffic Accident Involvement Rates by Driver Age and Gender." Accident Analysis and Prevention 27 (1995): 73–87.

Mirvis, P. H. Building the Competitive Workforce. New York: John Wiley and Sons, 1993.

Rubenstein, L.; Marmor, T.; Stone, R.; Moon, M.; and Harootyan, L. "Medicare: Challenges and Future Directions in a Changing Health Care Environment." The Gerontologist 35 (1994): 620–627.

Shaw, A. B. "In Defense of Ageism." Journal of Medical Ethics 20 (1994): 188–191.

West, H. L., and Levy, W. J. "Knowledge of Aging in the Medical Profession." Gerontology and Geriatric Education 4 (1985): 97–105.

Zweibel, N. R.; Cassel, C. K.; and Karrison, T. "Public Attitudes About the Use of Chronological Age as a Criterion for Allocating Health Care Resources." The Gerontologist (1993): 74–80.

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 age-related 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.

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

BIBLIOGRAPHY

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

"Age Discrimination Visible, but U.S. Businesses Urge Older Workers to Stay on the frob." PR Newswire, 16 November 2005.

"Aging Angst." Association Management. November 2000.

Chemerinsky, Erwin. "Age Discrimination Claims Get Boost from the Court." Trial. July 2005.

Spero, Donal J. "An Overview of the Age Discrimination in Employment Act." Florida Mediation Group, 27 September 2000.Available from http://www.floridamediationgroup.com/articles/ADEA.html.

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

Tackling Age Discrimination in the Workplace. Chartered Management Institute, October 2005.

                                Hillstrom, Northern Lights

                                 updated by Magee, ECDI

Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) prohibits any employer from refusing to hire, discharge, or otherwise discriminate against any individual because of age. The act covers compensation, terms, conditions and other privileges of employment including health care benefits. This act specifically prohibits age-based discrimination against employees who are at least 40 years of age. The purpose of the act is to promote the employment of older persons and to prohibit any arbitrary age discrimination in employment.

The Age Discrimination in Employment Act became law in 1967 but its roots can be traced back to 1964, when the U.S. government enacted Title VII of the 1964 Civil Rights Act. This act radically changed working life in the United States. The core of Title VII was to prohibit discrimination in employment based on race, color, sex, national origin, or religion. This statute provided a way for women and minorities, in particular, to challenge barriers that limited equal opportunities in organizations. States adopted similar legislation as well. One variable noticeably missing from Title VII was age discrimination. Three years later, the U.S. Senate and the House of Representatives enacted the 1967 Age Discrimination in Employment Act (ADEA).

SCOPE OF COVERAGE

The ADEA covers individuals, partnerships, labor organizations and employment agencies, and corporations that: 1) engage in an industry affecting interstate commerce and 2) employ at least 20 individuals. The act also controls state and local governments. Referrals by an employment agency to a covered employer are within the ADEA's scope regardless of the agency's size. In addition, the ADEA covers labor union practices affecting union members; usually, unions with at least 25 members are covered. The ADEA protects against age discrimination in many employment contexts, including hiring, firing, pay scales, job assignments, and fringe benefits.

Under the act, employers are forbidden to refuse to hire, to discharge, or to discriminate against anyone with respect to the terms, conditions, or privileges of employment because of a person's age. The act also forbids employers from limiting, segregating, or classifying an individual in a way that adversely affects his or her employment because of age. The act states that all job requirements must be truly job-related and forbids employers to reduce the wage rate of an employee to comply with the act. It forbids seniority systems or benefits plans that call for involuntary requirements due to age and also makes it illegal for employees to indicate any issue related to age in advertisements for job opportunities.

The ADEA was enacted to promote the employment of older persons based on ability rather than age and to help employers and employees find ways to work around problems that arise from the impact of age on employment. As a result, the act authorizes the Secretary of Labor to perform studies and provide information to labor unions, management, and the public about the abilities and needs of older workers and their employment potential and varied contributions to the economy.

PROCEDURAL REQUIREMENTS AND DEFENSES UNDER ADEA

The procedural requirements for an ADEA suit are complicated. Before an individual can sue in his/her own right, a private plaintiff must file charges with the Equal Employment Opportunity Commission (EEOC) or with an appropriate state agency. The EEOC may also sue to enforce the ADEA. A three-year statute of limitations exists for both government and private suits starting from the date of an alleged willful violation. For cases of nonwillful violations, the statute of limitations is two years from the date of the alleged violation.

The plaintiff does not need to prove that age was the only factor motivating the employer's decision, but must establish that age was one of the determining factors guiding the employer's discriminatory actions. Once the plaintiff establishes a prima facie case, the burden of evidence shifts to the employer. The employer must provide a legitimate, nondiscriminatory reason for the employee's demotion or discharge. Charges filed and resolved under the ADEA are tracked by the Office of Research, Information, and Planning which gets its data from the EEOC's Charge Data System.

The ADEA allows employers to discharge or otherwise discipline an employee for good cause, and to use reasonable factors other than age in their employment decisions. It also allows employers to observe the terms of a bona fide seniority system, except where such a system is used to require or permit the involuntary retirement of anyone age 40 or over.

In addition, the ADEA provides for a bona fide occupational qualification (BFOQ) defense. In general, an employer seeking to use this defense must show that its age classification is reasonably necessary to the safe and proper performance of the job in question. Specifically, the employer must show either: 1) that it is reasonable to believe that all or most employees of a certain age cannot perform the job safely, or 2) that it is impossible or highly impractical to test employees' abilities to tackle all tasks associated with the job on an individualized basis. For example, an employer that refuses to hire anyone over the age of 60 as a pilot has a potential BFOQ defense if it has a reasonable basis for concluding that 60-and-over pilots pose significant safety risks, or that it is not feasible to test older pilots individually.

CURRENT ADEA ISSUES

Age discrimination cases will be of increasing concern to businesses in the future as the work force in the US and in many developed countries continues to mature. In addition, changes in Social Security laws are pushing up the age at which a person may begin to draw full Social Security benefits and this will cause many more workers to stay on the job until later in life. In Supervision, Mary-Katheryn Zachary warns that plaintiffs in age discrimination cases typically receive more empathy than other discrimination plaintiffs and judges hearing such cases are likely to be in the protected class themselves. Damages can be substantial and may take the form of back pay, front pay, overtime pay, emotional distress pay, liquidated damages, and multipliers for intentional violations of the law. Remedies can also include equitable relief, hiring, reinstatement, and promotion. Employers are cautioned to consider ADEA laws when restructuring the workplace.

Another important issue facing employers in this realm is the legal interpretation of the ADEA as it relates to retirees. Federal court rulings in mid-2000 indicated that under the Age Discrimination in Employment Act, employers had to provide the same health care benefits to Medicare-eligible retirees that they do to younger retirees who do not yet qualify for Medicare. Critics of this interpretation within the business world claim that the practical result of such a ruling, if not addressed by Congress, will be a dramatic drop in the percentage of businesses offering comprehensive health care benefits to retired workers.

Amidst a flood of protests from employers and labor organizations, the EEOC reviewed the question of differential health care benefits for retirees of different ages, those under and those over the age of Medicare-eligibility. In 2003 the EEOC proposed a rule to exempt retiree health care plans from the ADEA and adopted the new rule in 2004. The rule was almost immediately challenged in a law suit, brought by the American Association of Retired Persons (AARP), late in 2004. A initial ruling in the case found in favor of the AARP. However, the ruling was reviewed in light of a mid-2005 U.S. Supreme Court ruling on another case. According to an article in Business Insurance dated October 3, 2005, Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania "stated last week the EEOC has the authority to implement a rule that would exempt from the Age Discrimination in Employment Act changes to health plans that affect retired workers when they become eligible for Medicare."

This ruling, if it withstands appeal, leaves employers free to provide a two-tiered system of retiree health care coverage, with younger retirees receiving more generous benefits than their older and Medicare-eligible counterparts, without running afoul of the ADEA.

As health care costs rise and the workforce ages with the steady march of the baby boom generation, issues of age discrimination on both ends of the age spectrum are likely to remain an issue of importance for all employers.

BIBLIOGRAPHY

"EEOC Rule on Lower Benefits for Retirees Violates the ADEA." HR Focus. May 2005.

Geisel, Jerry. "Court Blocks EEOC Rule Exempting Retiree Health Plans from ADEA." Business Insurance. 4 April 2005.

Geisel, Jerry. "EEOC Can Issue Rule on Retiree Benefits." Business Insurance. 3 October 2005.

Lindemann, Barbara. American Discrimination in Employment Law. January 2003.

Zachary, Mary-Kathryn. "Age Discrimination-Part II: The Private Employee." Supervision. September 2000.

Zachary, Mary-Kathryn. "Age Discrimination-Part I: The State Employee." Supervision. July 2000.

Zall, Milton. "Age Discrimination-What Is It Besides Illegal?" Fleet Equipment. April 2000.

                                 Hillstrom, Northern Lights

                                  updated by Magee, ECDI

AGE DISCRIMINATION

Prejudicial treatment or denial of rights based on age.

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 40 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 40, 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. However, it no longer applies to state governments.

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.

Landmark Discrimination Cases

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, 86L. 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 60. 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 60, 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 60 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, 110S. 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.

Waiver Controversy

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 earlyretirement 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 how important it is for an employer to follow the guidelines to the letter. Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993), 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).

Age Discrimination: Disparate Impact

In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), which protects workers age 40 or older from employment discrimination based on their age. Anyone who employs 20 or more people is subject to ADEA; it covers hiring, firing, compensation and benefits, training, job assignments, promotions, and layoffs.

Since ADEA's passage, however, there has been a difference of opinion among legal experts about exactly what types of action constitute "discrimination."

There are two different approaches that a plaintiff may take when filing an age discrimination suit, "disparate treatment" and "disparate impact." In disparate treatment cases, the plaintiff must prove that there was a specific intent to discriminate based on age. An example would be an employee whose supervisor keeps saying in front of other staffers, "Are you sure you're still able to do this work?" or "Don't you think it's time you retired?" disparate impact cases require the plaintiff to prove that an employment decision disproportionately affects members of a protected group (in this case, those over 40). In other words, in a disparate impact case, the discriminatory effect is what matters, even if the employer's intent was not discriminatory. Courts that recognize the disparate impact argument in age discrimination cases often require companies to prove "business necessity." For example, if a disproportionate number of employees affected by a layoff are over 40, the company will have to prove that those people were let go because their salaries were disproportionately high and that the company would face financial hardship if they were allowed to stay on.

In other forms of employment discrimination, the disparate impact argument has been used successfully. For example, employers who require prospective employees to have a certain educational background can be liable for a disparate impact charge if it turns out that those educational requirements rule out certain racial groups. The case of Griggs v. Duke Power, 401 U. S. 424, 88P.U.R. 3d 90, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) was the first racial discrimination case to recognize disparate impact. In age discrimination cases, the issue is more vague. It is so vague, in fact, that the U.S. federal circuit courts do not agree about whether disparate impact claims are allowable. The First, Sixth, Seventh, Tenth, and Eleventh Circuits do not allow disparate impact claims; the Second, Eighth, and Ninth do. The Third and Fifth Circuits had not ruled on it as of 2003, and the Fourth Circuit had not addressed it at all. In December 2001 the U.S. Supreme Court heard the case of Adams v. Florida Power Corp, 535 U.S. 228, 122 S. Ct. 1290, 152 L. Ed. 2d 345 (2002), in which the Eleventh Circuit Court had ruled against the plaintiffs' disparate impact argument in 255 F. 3rd 1322 (11th Cir. 2001), citing that it was "unavailable" for age discrimination cases. The plaintiffs took the case to the Supreme Court. The Eleventh Circuit Court argued that age discrimination is closer in scope to the Equal Pay Act (for which the Supreme Court has not allowed disparate impact claims) than Title VII of the civil rights act(which covered Griggs and similar cases). In April 2002 the Supreme Court dismissed the case without discussing its merits, stating only that the writ of certiorari had been "improvidently granted." This outcome left the issue unresolved judicially.

Proponents of disparate impact claims for age discrimination cases argue that employers should not be allowed to make employment decisions that disproportionately affect those over 40. In support of their position they point to employers who try to get around the claims so that they can demote or lay off their older workers. Often, those older workers are among the most highly paid and have the most expensive benefits in the company. From the company's point of view, getting rid of such an expensive workforce in favor of a younger and cheaper staff can generate significant savings, which is the reason the company will give for laying off a disproportionate number of older workers during a round of cost-cutting measures. This, say proponents of disparate impact claims, is clearly age discrimination because it singles out people over a certain age. The fact that a company uses cost savings or some other reason for taking the action does not diminish the adverse impact that action has on older workers.

Opponents of age-based disparate impact claims use the same example to make their case. The employer may indeed have laid off older workers to save money. But saving money is not the same as practicing age discrimination. From a business perspective, the employer has a legitimate financial concern for the future of the company. The fact that a particular action affects one group more than another is not adequate ground for protection in such cases, say those who oppose the disparate impact claim. If a company's only viable options are laying off high-salary employees or closing, it does not have the luxury of protecting workers who are over 40.

It should be noted that opponents of the disparate argument are not necessarily opposed to protection against age discrimination. The u.s. chamber of commerce, which has filed amicus briefs in such cases on numerous occasions, has stated its position clearly: "Reliance on age stereotypes about the abilities of older workers should not be tolerated. Due to natural job progression, however, age affects job terms such as compensation, pension, and seniority. In this context … imposing a burden on employers to justify the business necessity of routine and uniform job standards that statistically impact older workers is unjustified." Few would argue that employers should be forced to tolerate poor workers simply because they are past a certain age. The question is whether disparate impact actually forces them to do so.

Both sides of the debate may need to keep in mind that each case is unique. There is no doubt that some companies have legitimate financial difficulties and may be forced to lay off a disproportionate number of older workers. A company that does so and then makes do with fewer staffers is not the same as a company that turns around and hires younger people at salaries comparable to what the older workers were making. Likewise, an employee who is demoted because his or her work has measurably deteriorated in quality is different from an employee who is demoted for some vague reason upon reaching age 40 or 50.

further readings

Falk, Ursula Adler, and Gerhard Falk. 1997. Ageism, the Aged, and Aging in America: On Being Old in an Alienated Society. Springfield, Ill.: Charles C. Thomas.

Posner, Richard A. 1995. Aging and Old Age. Chicago: Univ. of Chicago Press.

cross-references

Civil Rights Acts.

The Supreme Court has also upheld that employers must follow the letter of the law when asking employees to waive their rights to file an age discrimination complaint in return for severance pay. In Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998), the worker accepted a severance package and signed a release that stated she would not sue the company for any reason related to her termination. She accepted the severance payments but soon after filed an age discrimination lawsuit. The company argued that the release was valid and that she had not attempted to return her severance payments.

The Supreme Court ruled that the company had failed to meet the minimum notice requirements set out in the OWBP. Specifically, the employer had not given the worker enough time to consider her options; it had failed to give her seven days after she signed the release to change her mind; and the release made no specific reference to claims under the ADEA.

ADEA is Further Clarified

Several 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 62 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.

Federal and State Employees 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 treasury department 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.

The legal landscape for age discrimination complaints became more challenging for plaintiffs who work for state government after the Supreme Court decided Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). In this case, a group of Florida university professors and librarians who were over 40 alleged that the university system had failed to adequately compensate them as compared to younger employees. The plaintiffs sued under the ADEA and a state civil rights act.

The state of Florida, instead of litigating the merits of the lawsuit, challenged the constitutionality of the ADEA as applied to state governments. It argued that under the eleventh amendment it was immune from federal age discrimination lawsuits. Prior court decisions had found that Congress had validly exercised its power under the Constitution's Article I commerce clause to enact the ADEA. However, this power did not extend to lawsuits filed by private individuals. Instead, Congress could abrogate a state's sovereign immunity by invoking the fourteenth amendment as its authority.

The Supreme Court concluded that Congress had not demonstrated that the Fourteenth Amendment authorized the application of the ADEA to state governments. States could lawfully discriminate on the basis of age if the discrimination is "rationally related to a legitimate state interest." In addition, the Court found no facts in the record to show that Congress needed to act against state governments for age discrimination. In light of this ruling, state employees must use state civil rights laws involving age discrimination to press their claims.

Hazen Paper v. Biggins 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 62-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, his or her 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 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, is not enough to prove the claim.

Reverse Age Discrimination?

Age discrimination is not limited to the workplace, nor is it experienced only by those over age 40. 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 18 and 25 (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.

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 70, 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.

further readings

Beyer, James R. 1993. "Biggins Leaves ADEA Issues Unresolved." National Law Journal (July 19).

Bodensteiner, Jill R. 1994. "Post OWBPA Developments in the Law Regarding Waivers to ADEA Claims." Washington University Journal of Urban and Contemporary Law 46 (summer).

Fick, Barbara. 1997. American Bar Association Guide to Workplace Law. New York: Times Books.

Gregory, Raymond F. 2001. Age Discrimination in the American Workplace: Old at a Young Age. Piscataway, N.J.: Rutgers Univ. Press.

Johns, Roger J., Jr. 1994. "Proving Pretext and Willfulness in Age Discrimination Cases after Hazen Paper Company v. Biggins." Labor Law Journal 45 (April).

Kulatz, Karen. 1993. "Trading Substantive Values for Procedural Values: Compulsory Arbitration and the ADEA." University of Florida Journal of Law and Public Policy 5 (spring).

Lawrence, Emily J. 1992. "Clarifying the Timing Requirements for Federal Employees' Age Discrimination Claims." Boston College Law Review 33 (March).

Payton, Janet G. 2003. "Age Discrimination Checklist." Corporate Counsel's Quarterly 19 (January).

cross-references

Affirmative Action; Discrimination; Seniority.

AGE DISCRIMINATION

Gomez-Perez v. Potter

The U.S. Supreme Court in May 2008 decided that a plaintiff can assert a claim under the Age Discrimination in Employment Act of 1967 when an employer retaliates against an employee for filing a complaint based on age discrimination. The Court reached this holding despite the fact that the federal statute on which the claim was based does not mention the word “retaliation.” The case was noteworthy because the majority consisted of an unusual blend of conservative and liberal justices.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 621 et seq. , provides protection for employees of ages 40 and older from employment discrimination based on the age of the employee. The statute applies to both employees and applicants for employment. The ADEA proscribes discrimination against a person because of the person's age with regard to any term, condition, or privilege of employment. The statute applies to any employer who has 20 or more employees. It also applies to state and local governments, employment agencies, and the federal government.

The section of the ADEA that applies to federal government employee is 29 U.S.C.§ 633a(a). Under this section, “All personnel actions affecting employees or applicants for employment who are at least 40 years of age … in the United States Postal Service and the Postal Rate Commission … shall be made free from any discrimination based on age.” The agency authorized to interpret the statute, the Equal Employment Opportunity Commission, took the view that the ADEA was designed to prohibit “retaliation for opposing any practice made unlawful by” the statute.

At least one appellate court previously held that the ADEA created a cause of action for retaliation when a federal employee complains about age discrimination. In Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), a curator with the National Museum of American History of the Smithsonian Institution brought suit under the ADEA, alleging that the Smithsonian Institution had retaliated against him when he alleged that he had been the victim of age discrimination. The court recognized that the ADEA allowed the plaintiff to bring the retaliation claim because a workplace, noting, “It is difficult to imagine how a workplace could be ‘free from any discrimination based on age’ if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee.”

Myrna Gomez-Perez was first hired by the U.S. POSTAL SERVICE in New York in 1987. She was transferred in 1995 to the Caribbean District and began working in Puerto Rico. When she learned that her mother was ill, Gomez-Perez requested a transfer from the Dorado Post Office to the Moca Post Office so that she could be closer to her mother. Her supervisor approved this request, but one month later, she requested to be moved back to the Dorado Post Office. On the same day that she made this request, her supervisor converted her old position into a part-time job and hired another employee to fill it. Thus, the supervisor denied her request.

Gomez-Perez, then 45, subsequently filed an equal employment opportunity complaint with the Postal Service, arguing that her supervisor had discriminated against her on the basis of her age. After she filed the complaint, she alleged that she became the subject of various forms of retaliation, including suggestions that she had sexually harassed co-workers. Her work hours were reduced dramatically as well.

In 2003, Gomez-Perez filed suit against the Postal Service as well as John E. Potter, the Postmaster General, in the U.S. District Court for the District of Puerto Rico. She argued that her supervisor had retaliated against her for filing the EEO complaint, and she based her claim on 29 U.S.C.§ 633a(a). In 2006, the district court held in favor of the Postal Service, finding that the ADEA did not allow private plaintiffs to bring retaliation claims under its provisions. Gomez-Perez v. Potter, No. 03-2236, 2006 WL 488060 (D.P.R. Feb. 28, 2006).

Gomez-Perez then appealed the decision to the First Circuit Court of Appeals. Before the appellate court, she argued that the Supreme Court in previous cases had recognized a cause of action for retaliation when the statute only refers explicitly to discrimination. More specifically, the Supreme Court in Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005), the Court held that under Title IX, retaliation constitutes a form of discrimination that is prohibited by federal statute even though the statute does refer specifically to retaliation. The First Circuit was not persuaded, however, and ruled that the ADEA did not create a cause of action for retaliation. Gomez-Perez v. Potter, 476 F. 3d 54 (1st Cir. 2007).

During oral argument, the justices focused most of their attention on the language of the statute. Justice Antonin Scalia noted to Gomez-Perez's counsel that the plain language of the ADEA does not specifically cover retaliation claims. Justice Ruth Bader Ginsburg, on the other hand, suggested that an anti-discrimination statute must cover retaliation claims. “A person who is discriminated against will quite commonly say, ‘I was not promoted because that was discrimination, and then because I complained about it, all these bad things happened to me.’”

In a 6-3 decision the Court reversed the First Circuit's decision. Gomez-Perez v. Potter, No. 06-1321, 2008 WL 2167189 (May 27, 2008). Justice Samuel Alito, a conservative, sided with his more liberal counterparts and wrote the majority opinion. Alito focused much of his attention on how the Court had treated retaliation claims under similar federal statute, including the Court's treatment of such claims under Title IX in Jackson. Much earlier, the Court had used a similar rationale in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969) to find that a federal statute that prohibited discrimination based on race also prohibited retaliation.

Chief Justice John Roberts wrote a dissent, which was joined in part by Scalia and Justice Clarence Thomas. Roberts argued that the Court placed too much reliance on the precedent set forth in Jackson and Sullivan. Thomas also wrote a separate dissent where he argued that the Court should have decided the case based on the plain meaning of the statute's language.

Kentucky Retirement System v. Equal Employment Opportunity Commission

The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§ 621 et seq., was enacted to protect older workers from arbitrary employment practices, such as the setting up of age requirements unrelated to the ability needed for the job or creating a two-tiered benefits plan based on age. While similar in wording to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A,§§ 2000e et seq., the ADEA has some defenses and provisions uniquely applicable to age discrimination. The most important difference is that a person alleging age discrimination must prove that the employer intentionally discriminated on the basis of age. This standard of liability is called disparate treatment and is often very hard to prove. In contrast the standard of liability known as disparate impact only requires the plaintiff to show that the employer used a facially neutral test or other employment practice that unjustifiably resulted in discrimination against members of a protected group. Because the Supreme Court disallowed disparate impact in ADEA cases, plaintiffs have had a harder time prevailing. Such was the case in Kentucky Retirement System v. Equal Employment Opportunity Commission,—U.S.—, 128 S. Ct. 2361,—L. Ed. 2d—(2008), where the Court ruled that a state and county retirement plan that gave different levels of pension benefits to “hazardous position” workers based on their ages did not violate the ADEA.

Charles Lickteig, who worked in the Jefferson County, Kentucky Sheriff's Department, became eligible to retire at age 55. Classified as a hazardous position worker, Lickteig continued to work, became disabled, and then retired at age 61 after 18 years of employment. He discovered that he was treated differently than younger workers who became disabled before they reached the age of 55 or had served 20 years. The disability plan awarded benefits based in part on how close a disabled worker was to reaching normal retirement. The plan sought to provide disabled workers with the same retirement benefits they would have had if they continued to work until eligible for normal retirement. Lickteig filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that because older workers who became disabled after the age of 55 did not receive the same amount of benefits as younger workers, the same the plan affects older workers differently than younger workers.

The EEOC sided with Lickteig and filed suit in Kentucky federal district court alleging that the plan violated the ADEA. The district court and a panel of the Sixth Circuit Court of Appeals ruled in favor of the state, finding that the disability retirement benefits program, while taking age into account, did not attach any stigma based on age itself. The entire Sixth Circuit reheard the case and reversed itself, holding that the act of treating younger disabled retirees more generously than older retirees was sufficient to establish an ADEA violation.

The Supreme Court, in a 5–4 decision, reversed the Sixth Circuit ruling. Justice Stephen Breyer, writing for the majority, noted that Lickteig had to prove that the state intentionally discriminated on the basis of age when it created the two-tier disability retirement system. He concluded that Lickteig and the EEOC had failed to meet that burden of proof. The benefit at issue was offered to all employees working in hazardous positions on the same nondiscriminatory terms. Moreover, Congress had approved programs that calculated permanent disability benefits using a formula that expressly took age into account. The Kentucky plan reasonably took age and length of service into account when structuring benefits for disabled workers who were eligible for retirement. The differences in treatment were “not motivated by age.”

Justice Anthony Kennedy, in a dissenting opinion joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel Alito, argued that the decision undercut the framework of the ADEA. Kentucky's motivations did not matter when assessing the benefits plan. Kennedy stated that !By explicit command of Kentucky's disability plan, age is an express disadvantage.” It made no sense to force plaintiffs to prove intentional discrimination when the plan was discriminatory on its face.

Meachum v. Knolls Atomic Power Laboratory

The Supreme Court issued an important ruling in June 2008 involving burdens of proof under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 623(a)-(c). Under the statute , an employer may avoid liability for age discrimination if the employer's business practices were based on a “reasonable factor than age.” The Court determined that the employer bears the burden of proving that an action was for a reason other than age, rather than requiring an employee to prove that the action was not based on such a factor. The decision reversed a ruling from the Second Circuit Court of Appeals.

The ADEA establishes general prohibitions against age discrimination. The statute was based on an earlier version of the Civil Rights Act of 1964 but was drafted with an understanding that age presents unique problems for employers because an employer may need to terminate an older employee for a reason other than the employee's age. Accordingly, the statute provides, “It shall not be unlawful for an employer … to take any action otherwise prohibited [in the act] … where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age. …” 29 U.S.C.§ 623(f)(1) (2000).

In Smith v. City of Jackson, 544 U.S. 228, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005), the Court recognized that a plaintiff can bring a disparate-impact claim under the ADEA, meaning that a plaintiff may prove a violation by showing that an employer's practice had the effect of discriminating against employees by age. A disparate-impact claim differs from a disparate-treatment claim in that the latter focuses on intentional discrimination based on age.

Both disparate-impact and disparate-treatment claims under the ADEA are governed by a burden-shifting scheme established in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 722 (1989). Under this case, the plaintiff initially has the burden to prove that the employer's business practice has a significant disparate impact on older workers, meaning those over the age of forty. If the plaintiff can prove this, the burden shifts to the defendant to provide a legitimate business justification for the practice. Even if the employer can show this justification, though, the plaintiff may still prove a case under the ADEA by showing that the employer could have adopted an alternative that would have been just as effective as the discriminatory option.

Knolls Atomic Power Laboratory is one of several contractors employed by the federal government to maintain U.S. nuclear-powered warships. The United States Navy's Nuclear Propulsion Program, in consultation with Knolls itself, sets the staffing limit for the lab. Due in large part to the end of the COLDWAR, the demands for Knolls' services in the area of naval nuclear reactors decreased. Knolls thus had to reduce its workforce by a total of 143 people. The company made a buyout offer that about 100 employees accepted. However, the company was left with the need to eliminate about 30 other jobs.

To determine which of the remaining employees would be terminated, the company ordered its supervisors to list the employees on a matrix and ranking them in a number of categories. These categories included performance, flexibility, criticality of skills, and length of service. The performance category was based primarily on the average of previous evaluations, while the length of service was based on objective criteria. On the other hand, the flexibility and criticality categories were judged on subjective criteria based largely on the opinions of the supervisors. Of an estimated 2,063 company employees, 31 were selected for layoff based on these rankings. Thirty of the 31 employees who were laid off were over the age of 40.

Most of the employees brought suit, arguing that Knolls had violated the ADEA. The employees brought claims for both disparate treatment as well as disparate impact, arguing that the company “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees.” The workers produced a statistical analysis showing that the results achieved by Knolls' ranking process could rarely happen by chance in terms of the ages of the affected employees.

The trial court held in favor of the employees on the disparate-impact claim but held in favor of Knolls on the disparate treatment claim. Meachum v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193 (N.D.N.Y. 2002). On appeal, the Second Circuit Court of Appeals affirmed. Meachum v. Knolls Atomic Power Laboratory, 381 F.3d 56 (2d Cir. 2004). Shortly after the Second Circuit's decision, though, the Supreme Court rendered its decision in Smith, and in 2005, the Court vacated the Second Circuit's decision and remanded the case for further consideration.

On remand, a divided panel of the Second Circuit held in favor of Knolls, finding that the employees had failed to meet their burden of proof. Meachum v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006). The dissent in the case, written by Judge Rosemary Pooler, argued that the majority had misinterpreted the standard for disparate-impact cases. According to the dissent, the statutory exemption in cases where an employer can establish reasonable factors other than age is an affirmative defense that the employer must prove.

In a 7–1 decision in which Justice Stephen Breyer did not participate, the Court reversed the Second Circuit. According to the Court, the exemption that applies when an employer gives reasons other than age provides an affirmative defense, and the burden of persuasion falls on the employer to prove this defense. This ruling is consistent with the Court's principle stating that “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it.” The ruling means that the treatment of this exception is the same as the exception where an employer imposes bona fide occupational qualifications, which is another exception that the Court treats as an affirmative defense. In issuing this ruling, the Court vacated the Second Circuit and remanded for further proceedings.

Justice Antonin Scalia wrote a concurring opinion, where he argued that the question before the Court should have been answered by deferring to the Equal Employment Opportunity Commission's rule. Justice Clarence Thomas dissented in part of the opinion because he disagrees that the ADEA allows disparate impact claims based on age.

Sprint/United Management Co. v. Mendelsohn

The admission of information at trial is governed by rules of evidence. The Federal Rules of Evidence govern all criminal and civil matters filed in federal courts and have been adopted, in large part, by state judicial systems. Whether certain information is admissible at trial can determine the outcome of a litigation, so lawyers are particularly interested in how the U.S. Supreme Court interprets evidence rules. This was the case in Sprint/United Management Co. v. Mendelsohn,—U.S.—, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008), where the lower courts were divided over whether to admit testimony mony in age discrimination lawsuits from employees who were not supervised by the alleged company wrongdoer. The central issue was whether a per se rule applied admitting or excluding such evidence. A per se rule instructs the parties that the court will not examine the details of the proffered testimony or documents to determine admissibility; instead, the rule acts as a bright line that either admits or bars the introduction of that type of evidence. Such rules are disfavored by the courts, as relevance and prejudice are determined in the context of the facts and arguments in a particular case. Seen in this light, the announcement of a per se rule by the Supreme Court is a major development. In this case the Court pulled back from such a ruling, finding that the trial court's basis for its ruling was unclear and warranted clarification from that court.

Ellen Mendelsohn was employed in the Business Development Strategy Group pf the Sprint/United Management Company from 1989 until 2002. Mendelsohn was terminated in 2002 as part of a company-wide reduction in force. She filed suit in federal district court under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.§§ 621 et. seq., alleging she was laid off because of her age. To help prove her claim, she wanted to introduce testimony by five former Sprint employees who claimed that their supervisors had discriminated on the basis of their age. Three of the employees alleged that they had heard one or more Sprint supervisors or managers make remarks denigrating older workers. One employee alleged that an intern program was a scheme for age discrimination and that she had seen a spreadsheet suggesting that supervisors could consider age in making layoff decisions. Another witness was prepared to testify that he had been given unwarranted negative performance evaluations because of his age and that he had witnessed another employee being harassed because of her age. The last witness alleged that the company had required him to get permission before hiring anyone over the age of 40. After he was terminated Sprint hired a younger employee to replace him and the company rejected his later job applications.

All of this proposed testimony suggested a hostile work environment based on age discrimination. However, none of the witnesses worked with Mendelsohn in the Business Development Strategy Group and none had worked under her supervisors in her chain of command. Sprint moved to exclude the testimony, contending that it was irrelevant to the central element in Mendelsohn's claim that she was fired by her direct manager because of her age. Sprint said the testimony would only be relevant if the witnesses were “similarly situated” in that they shared the same supervisors. Finally, it argued that the testimony should be barred under Rule 403 of the Federal Rules of Evidence, as its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay. The court agreed with Sprint and issued a brief order that stated Mendelsohn could only introduce evidence of discrimination against Sprint employees “who are similarly situated to her.” The court defined “similarly situated to her” as requiring proof that her direct manager was the decision-maker in any adverse employment action and actions were in “temporal proximity.” Beyond that, the district court provided no explanation for its ruling.

As the trial proceeded, the court orally clarified this ruling, stating that Mendelsohn could introduce testimony going to a totally different question as to whether the reduction in force was a pretext for age discrimination. In the end, Sprint prevailed at trial. The Tenth Circuit of Appeals interpreted the written order as the application of a per se rule barring evidence from employees with other supervisors as irrelevant to proving discrimination in ADEA cases. The appeals court concluded the lower court had abused it discretion because in this case the issue was not discriminatory discipline or actions but rather a company-wide policy of discrimination. Therefore, Tenth Circuit found the evidence relevant and reversed and remanded the case for a new trial.

The Supreme Court, in a unanimous decision, vacated the lower court decisions and returned the case to the district court to clarify its evidentiary ruling. Justice Clarence Thomas, writing for the Court, ruled that the Tenth Circuit should not have ruled on the relevancy of the evidence and instead, should have remanded the case for clarification. The appeals court had failed to give the great deference to district court evidentiary rulings that the Court has required. It was unclear if the district court had used an incorrect precedent in making its ruling. Because of this ambiguity it was incorrect for the appeals court to conclude the district court abused its discretion. If in fact the court had applied a per se rule, the appeals court would have been correct to conclude the court had abused its discretion.