New Age Discrimination Law Considered By U.S. Congress

A bipartisan bill which would make it easier for older workers to prove age discrimination in the workplace has been introduced in the U.S. Congress.

The “Protecting Older Workers Against Discrimination Act” (POWADA) would reverse a 2009 U.S. Supreme Court decision, Gross v. FBL Financial Services, Inc., that imposed a higher legal standard by requiring older workers to prove age was the sole, motivating factor for their dismissal or demotion.

Before the High Court’s decision, an employee only had to prove that age was one of the factors for an adverse employment decision. In addition, admissible evidence under the bill would include evidence that shows the existence of a workplace culture that discriminates against older workers such as jokes about age, comments on appearance, etc.

“Older workers are the only segment of the labor force projected to grow in coming decades. Every other demographic is shrinking or staying the same.”

POWADA would mark a return to the legal requirement applied in federal age discrimination claims before the Supreme Court’s ruling, proponents say, replacing the Gross “but-for” test with the “mixed-motive “ test that courts applied prior to 2009.

Federal, State, and Local Anti-Discrimination Laws

There is a federal anti-age discrimination law on the books. The Age Discrimination in Employment Act (ADEA) was enacted in 1967. The ADEA protects workers age 40 and older from being forced out of jobs or denied employment due to their age and applies to employers with at least 20 employees. But, some say employers still seem to miss the mark when it comes to ADEA compliance and ageism generally. The Washington Post has reported that, even with an economy so strong that there are more job openings than applicants, older workers still struggle to get hired.

The “Protecting Older Workers Against Discrimination Act” would amend the ADEA as well as the Americans with Disabilities Act, Title VII of the Civil Rights Act and the Rehabilitation Act.

The Older Workers Benefit Protection Act of 1990 also provides some protection for older workers as well. The law makes it illegal to use an employee’s age as the basis for discrimination in benefits; to target older workers for staff-cutting programs and to require older workers to waive their rights without observing certain safeguards.

Local and state laws also provide protection against age discrimination. For example, in New York City, individuals can file age-discrimination claims with the NYC Commission on Human Rights. The Texas Labor code forbids discrimination against individuals who are 40 years of age or older for employers with 15 or more employees. The Missouri Human Rights Act protects individuals who are 40 or more years of age, but less than 70 years of age, from employment discrimination based on the individual’s age.

EEOC targets age discrimination

Last year, the U.S. Equal Employment Opportunity Commission announced that age discrimination was one of its targets. The EEOC says age discrimination is employment’s “open secret” and is often viewed as more acceptable than other forms of discrimination.

In 2017, the EEOC received over 20,000 age discrimination complaints – accounting for about 23 percent of all discrimination charges filed. The number of age discrimination charges filed with the EEOC has not dipped below 18,000 since 2006.

A 2018 survey by AARP found that in a survey of 3,900 people over age 45, two out of three said they have seen or experienced age discrimination on the job. Among the 61 percent of respondents who reported age bias, 91 percent said they believe that such discrimination is common. Three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job, AARP says.

Graying workforce

While there’s been a lot of talk about millennials in the workplace, older workers could be a force in their own right. From 1970 until the end of the 20th century, older workers—defined by the U.S. Bureau of Labor Statistics defines as those ages 55 and older—made up the smallest segment of the labor force. In the 1990s, however, older workers made up an increasingly larger share of the labor force, while workers in the younger age groups started to show declines in their labor force shares. By 2003, the older age group no longer had the smallest share, BLS says.

The BLS projects that, in the years leading up to 2024, the 65- to 74-year-old and 75-and-older age groups will have faster annual rates of labor force growth than any other age group. From 2014 to 2024, the 65- to 74-year-old age group is expected to grow by about 55 percent and the 75-and-older age group is expected to grow by 86 percent, while the entire labor force is supposed to grow only 5 percent.

“Older workers are the only segment of the labor force projected to grow in coming decades. Every other demographic is shrinking or staying the same,” Michael North, Assistant Professor of Management and Organizations at New York University Stern School of Business, told CityLimits.org.

Will it pass?

POWADA has strong bipartisan support. It is sponsored in the U.S. House by Reps. Bobby Scott (D-Va.) and Jim Sensenbrenner (R-Wis.) and is supported by Reps. Alma Adams (D-N.C.), Suzanne Bonamici (D-Ore.), Mark Takano (D-Calif.), Glenn Grothman (R-Wis.), Will Hurd (R-Texas) and John Katko (R-N.Y.). In the U.S. Senate, the bill is being sponsored by Sens. Bob Casey (D-Pa.) and Chuck Grassley (R-Iowa) and is supported by Sens. Susan Collins (R-Maine) and Patrick Leahy (D-Vt.). But past efforts to strengthen older worker rights have struggled on opposition from business groups, according to The New York Times.

This article is intended for informational purposes. It should not be considered or used for legal advice.