Age Discrimination

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. Former Woolworth employee Katherine Zajac, 84, appears at a news conference in New York on an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission against her former employer. The suit alleged that, during a two-year span, older employees were laid off and replaced by younger workers. (AP photo by Ed Bailey.) 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.