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Age Discrimination Law Turns 50

As bias grows, AARP calls for stronger enforcement and more safeguards for older workers

Posted on 12/14/17 by Kenneth Terrell

Age Discrimination Law Turns 50

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As the Age Discrimination in Employment Act (ADEA) reaches its 50-year milestone, limitations and shortcomings of the law have been exposed in recent years.

You’re middle-aged and looking for a job. Half of the help-wanted ads you see say there’s no need to apply if you’re age 55 or older. Many other postings — 25 percent, in fact — actually ban applications from anyone over age 45.

Such was the case in 1965, according to a Labor Department report produced during the era of civil rights legislation. Lawmakers at that time were wondering whether age deserved the same anti-discrimination protections given to race and sex in the Civil Rights Act of 1964. The unemployment level for older adults was 27 percent that year. So Congress stepped in and passed the Age Discrimination in Employment Act (ADEA), which President Lyndon B. Johnson signed on Dec. 15, 1967.

For 50 years, the ADEA has been the main bulwark protecting the rights of workers over the age of 40. But several Supreme Court rulings have eroded its basic safeguards. For example, in 2009 the court ruled that workers have to prove that age was the primary reason they were dismissed or demoted, a different standard than had previously been used for ADEA cases and one that makes it much more difficult for workers to prevail.

The law’s other shortcomings have become increasingly clear in recent years. For example, some employers have found ways to get around the law’s restrictions regarding hiring practices. Recruiters are not allowed to ask a job seeker’s age, so instead some online applications require applicants to state the year of their high school or college graduation in order to submit the form — and those details, of course, reveal age. Other digital applications have dropdown menus for graduation dates that don’t go back beyond a certain year, implying anyone who graduated before then need not apply.

Victims of age-based workplace harassment — such as comments that are demeaning but don’t cause clear financial harm — often decide not to file lawsuits because the limitations on damages make pursuing a case economically unfeasible. And in some professions older workers are still being forced into mandatory retirement, despite the ADEA’s ban on this practice.

These are some of the limitations of the ADEA that AARP and other advocates for older workers are seeking to fix. In a hearing before the Special Senate Committee on Aging this month, AARP urged Congress to pass the bipartisan Protecting Older Workers Against Discrimination Act. The bill would make it easier for workers to pursue age discrimination claims, legislation proposed in part as a response to the 2009 Supreme Court decision.

At the same time, AARP Foundation Litigation is serving as cocounsel on several key lawsuits that could bolster the law. One suit challenges whether employers can set limits for years of experience when considering job candidates, while another argues that older workers should not be fired because of their potential health care costs.

AARP’s efforts in the courtroom are important because pursuing legal action doesn’t make sense for many victims of age discrimination. The ADEA allows for damage awards only for unpaid wages or other forms of lost compensation. But for workers who have experienced age-based harassment or bias that didn’t lead to financial loss, the federal law offers little solace. These workers can file a complaint, but even if it’s found that harassment did occur, the company won’t have to pay punitive damages. Experts say this discourages many victims from filing complaints and encourages lawyers to steer clear of such cases.

“Can you imagine financing that on your own when you’re not going to get any money damages?” says Laurie McCann, senior attorney for AARP Foundation Litigation. “To hire a lawyer or bring a lawsuit when you know you’re not going to get any monetary relief? It’s impractical.”

Indeed, while more than 20,000 age discrimination complaints were filed with the Equal Employment Opportunity Commission (EEOC) in 2016 alone, the commission thinks incidents are likely underreported, according to Cathy Ventrell-Monsees, senior advisor to the agency's acting chair. AARP has asked the EEOC to strengthen its guidance on what is considered age-based harassment in the workplace, but enabling workers to collect punitive damages under the ADEA would require congressional action.

In testimony this year before an EEOC hearing on the ADEA, AARP’s McCann urged the commission to strengthen its regulations on age-related questions on job applications. Many job postings ask for “digital natives” — individuals who grew up using the internet and other technologies — as opposed to those who are older and learned those skills later in life. Some employers even restrict much of their hiring to recent college graduates. “When you’re looking for job candidates only in places like college campuses, it’s really going to limit who you can hire,” says Jacquelyn James, director of the Center on Aging and Work at Boston College.

Age discrimination lawyers also point out another weakness in the ADEA. Employees who are named partners of the companies they work for — typically law firms, accounting agencies and consulting firms — can’t pursue federal age discrimination claims. The rationale is that by becoming partners, these workers also have become the employer. Trouble is, in today’s workforce, some employees are called partners even though they have no ownership stake in the firm or managerial control. “The nature of ‘partnership’ has changed over the years,” says McCann. “A partner today is not the same as when the ADEA was enacted in 1967.”

AARP has also asked the EEOC to step up enforcement of its regulations on what is classified as partnership. The EEOC says it is considering this recommendation.

Without more robust enforcement of the ADEA, advocates for older workers worry that age discrimination will become as rampant as it was before the law was passed. “It’s in the nature of the problem of age discrimination that people just kind of look the other way,” says Patricia G. Barnes, a lawyer and author of Overcoming Age Discrimination in Employment.

Convincing employers to see the valuable contributions older adults bring to the workforce is another pathway of fighting age discrimination. In addition to its efforts battling ageism in the workplace, AARP is working to highlight the benefits of hiring older workers and introduced an Employer Pledge Program for companies that vow to recognize the value of experienced workers. AARP also offers insights and advice on how older workers can thrive in the workforce, as well as the AARP Job Board, at its Work & Jobs website.

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