Employers should be aware that seemingly “benevolent discrimination” can backfire. The ADEA does not allow a worker to be excluded from the workplace based on their age even to “protect” them from a higher risk of contracting COVID-19.
Here's what you need to know about the ADEA:
- This act protects both existing employees and candidates.
- The law has been in place since 1967.
- All areas of employment are touched by this regulation beginning with how jobs are posted through employee termination.
- Some states do not have an age minimum that applies to their age discrimination regulations.
Knowing they have the protection of the ADEA, many Americans now say they’re likely to work past age 65, and most employers no longer have mandatory retirement ages. But one of the biggest hurdles facing older workers is age discrimination.
Even with federal and state laws prohibiting age bias, the group that advocates for older workers, AARP (American Association of Retired Persons), released a study in December 2019 that found age discrimination is widespread and seen as the “last acceptable bias.”
What is the ADEA?
One of the most well-known laws prohibiting workplace age bias is the Age Discrimination in Employment Act of 1967 (ADEA). Not only are existing employees protected from workplace ageism by the ADEA, but it also covers job applicants who are at least 40 years old. Workers younger than 40 are not covered under the protections of the ADEA. Still, they might be protected under state law.
In a nutshell, the ADEA protects older workers from bias in all stages of employment, including:
- Job announcements
- While workers are on the job
Specifically, the ADEA prohibits bias in the following areas:
- Pay and benefits
- Job assignments
- Firing and layoffs
- Any other term or condition of employment.
The law applies to a wide range of employers. The ADEA is governed and enforced by the EEOC (Equal Employment Opportunity Commission) and applies to companies, private and public, that have 20 or more employees on their payroll. This also includes:
- Employment agencies
- The federal government
- Labor organizations (Unions)
- State and local governments
No retaliation is permitted
The ADEA has an anti-retaliation provision. Employers can’t take adverse action against an employee for filing a claim under the law or for opposing an age-based employment practice.
Waivers of rights under the ADEA
Waivers of claims are allowed under certain circumstances. These releases must meet several requirements to be valid, including that the waiver must be:
- In writing
- Offered to the individual filing the complaint giving them some form of generous consideration on top of what the individual is already entitled to.
According to the EEOC, waivers of ADEA claims are common in settling discrimination claims or in connection with incentives to leave the company.
State and local laws
Employers should note that some states have enacted laws with age-related workplace protections with different requirements than those found in the ADEA. Some states allow age discrimination claims to be brought against employers with fewer employees than the ADEA minimum of 20. Others allow workers under the age of 40 to file a claim.
For example, Arizona does not have an employee minimum for filing a state-based age claim. In contrast, California employers with only five employees can be subject to a state-based age claim. And Maryland does not have a minimum age to qualify for protection from age discrimination.
Best practices for employers
There are several things that employers can do to prevent age bias claims.
Age bias in recruiting and hiring
Age preferences in ads or job notices should not be used as they are not allowed under the ADEA. Similarly, potentially discriminatory language such as “energetic person” should be avoided.
However, if there is a “bona fide occupational qualification reasonably necessary to the business’s normal operation,” then a job notice can specify an age limit. The EEOC has noted that this happens only in “rare circumstances.”
Although the ADEA does not expressly forbid it, the EEOC has noted that information about an applicant’s age or birthdate can be obtained after the employee is hired if it is needed for a lawful purpose.
Examples of when companies experienced issues with the ADEA
Norfolk Southern Corp. settled an EEOC age discrimination lawsuit in 2020. The company paid $350,000 to settle charges that the freight transportation company would not hire candidates 51 or older as special agents (a railway security position).
In a summary of the EEOC’s account, it has been suggested that a person who was responsible for making hiring decisions for the company told a hopeful candidate “that the company had an unwritten policy of not hiring individuals older than 51” for the job.
On the opposite end of the spectrum, recruiting practices can also come under fire. One nationwide accounting firm was forced to defend itself against claims that its college campus recruiting efforts were ageist.
Employers can explicitly adopt equal employment opportunity and diversity policies that include age, making all employees aware that the organization supports inclusion.
Organizations should examine their hiring practices, including where they look for employees, to ensure they are not unintentionally setting themselves up for potential bias claims.
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Age bias on the job
The EEOC states that on-the-job harassment under the ADEA includes offensive or derogatory comments, whether overt or otherwise, about a person’s age. Some teasing, stray remarks, or isolated comments obviously made in jest are allowed, though.
They are very clear about the definition of harassment: “harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision such as the victim being fired or demoted.”
The key is the severity and frequency of the statements.
The 6th U.S. Circuit Court of Appeals allowed the age bias claims of a 58-year-old employee whose supervisor allegedly made multiple negative comments about her age to move forward.
The plaintiff claimed in court documents that the supervisor made at least six comments about the plaintiff’s age in five months, including calling her “grandma” and “little old lady.” The plaintiff also said the supervisor teased her about postmenopausal issues and her retirement plans.
The harasser can be:
- A supervisor
- A co-worker
- A client or customer.
Employers should provide training for managers and supervisors on the legal standards for harassment.
Using the ADEA to avoid age bias in layoffs and terminations
Layoffs in organizations can present age bias issues. Older employees tend to be more senior and highly paid, so employers could set the stage for age discrimination complaints if the staff reduction involves those making the most money.
If taken to court, employers can prevail if they can support an adverse employment decision with thorough documentation of the nondiscriminatory reason for the action.
In a 2019 ruling, the 3rd Circuit said that the record supported an employer’s decision to terminate an older worker because he failed to perform an essential function of his job by failing to maintain a data backup resulting in the permanent loss of critical data.
Age discrimination during the pandemic
Employers should be aware that seemingly “benevolent discrimination” can backfire. In technical assistance explaining how COVID-19 intersects with the ADEA, the EEOC said the ADEA does not allow a covered employer to exclude a worker from the workplace based on their age even if the employer does so to protect a worker from a higher risk of contracting COVID-19.
The AARP has noted that more than 4 in 10, or 40% of the adults who contribute to the most vital economies in the world, will likely be 50 or older by 2050. They continue on to state, “The workforce is aging even more rapidly as smaller cohorts of younger people enter work at a later age, and older people are staying on longer at work.”
The advocacy organization found in a 2020 study that a wide range of age groups in the workforce promotes stability in turnovers and the ability to handle diversity. AARP also found that mixed-age teams are more productive and spur innovation.
Victoria A. Lipnic, the EEOC’s former Acting Chair, said in an EEOC report on the ADEA“, “age-diverse teams and workforces can improve employee engagement, performance, and productivity. Experienced workers have talent that our economy cannot afford to waste.”