Employment Law

Age Discrimination Basics 101

The Age Discrimination in Employment Act (“ADEA”)

The Age Discrimination in Employment Act, or the “ADEA” is a legislative Act passed in 1967 that broadly prohibits employers to discriminate against employees based on their age. In particular, the ADEA prohibits discrimination against employees who are 40 years old or older. Although the ADEA does not provide protection to employees below 40, many states have their own anti-discrimination regulations that protect younger employees. It is important to note that the ADEA provides the bare minimum, standard anti-discrimination regulations all employers across the nation must comply with, and States are allowed to—and regularly do—implement more stringent regulations to protect their employees.

Unlike other anti-discrimination laws, like the Civil Rights Act “CRA (1964)”, which broadly prohibits discrimination based on race, national origin, ethnicity, sex, and religion, and prohibits any positive or negative consideration based on these protected classes, the ADEA does not prohibit employers in providing more employment advantages and opportunities to employees who are 40 or older. To understand, let’s contrast two examples:

Discrimination under the CRA v. Discrimination under the ADEA: A Comparison

Prohibited Discrimination under the CRA

For example, suppose that ABC Pest and Lawn Service is looking to hire one experienced Pest Control Representative. Saul, the hiring manager, has narrowed down the applicants to John and Joe. John, a Latino man, has never worked in pest control, though he does have some customer service experience. He is seeking a career change and is hoping that he can learn more about the pest control industry and develop a career with ABC.

Joe, a black man, has been working in the pest control industry over seven years. He has worked at numerous pest and lawn companies doing in-home exterminations in surrounding areas. He was given outstanding reviews by both his previous employers and by his customers.

Saul, like John, is a Latino man. Although he believes that John could learn quickly, he knows he does not have the experience needed to competently work in the position available and that Joe is the best candidate concerning this particular role. However, despite this, Saul decides to hire Joe. Saul decided to hire Joe because Saul is the only Latino employee at ABC and he is interest in getting more Latino employees at ABC.

Based on these circumstances, Saul has engaged in prohibited discrimination based on race. Even though Joe was the best candidate, he was not hired because he was not Latino. Employers cannot make employment decisions based on race under any circumstance. Note that this is true even though Joe and John are both in a protected, minority class.

Now, contrast this example with the next.

Nonprohibited Discrimination under the ADEA

Meg is the hiring manager at Grocery Store, Inc., a popular grocery chain. Meg is looking to hire a cashier to their team. Meg has narrowed down the applicants to two candidates: Joann and Sidney. Joann is a 56-year-old who has worked as a cashier at several chain grocery stores over the last 15 years. She has experience in all grocery store positions. Sidney is a 37-year-old who has about 17 years in experience working in grocery stores around the area. Sidney, like Joann, has experience in all position’s grocery stores have. Although Sidney has slightly more experience than Joann, Meg decides to hire Joann. Meg particularly liked that Joann was an “older” woman, as the store currently did not have any employees over 40. Meg assumed that Joann’s experiences and her age made her wiser, better prepared, and more dependable.

Here, Meg has not engaged in prohibited discrimination under the ADEA. Although Meg ostensibly hired Joann over Sidney due to Joann’s older age, employers are not prohibited in giving consideration to age when making employment decisions or providing employment advantages to employees over 40. This is a stark contrast to the CRA’s provisions, as shown above, which prohibit any consideration regarding race, national original, sex, gender, etc.

ADEA Applicability

Surprisingly, the ADEA is not applicable to all employers, though a substantial portion are generally covered by the ADEA’s provisions. In particular, the ADEA only applies to employers with 20 employees or more. However, the ADEA applies to private employers, state and local governments, the Federal government, employment agencies, labor organizations.

Prohibited Discrimination

The ADEA broadly prohibits discrimination based on age regarding any employment term, condition, or privilege. This includes discrimination with respect to hiring, promoting, demoting, termination, training, limiting, separating and/or segregating, wages, and all other aspects concerning employment. However, it should be noted that the negative action doesn’t have to result in an economic disadvantage to the employee. The employee can have a reduction in work responsibilities and duties and still be considered to be discriminated against.

In addition, the person actually being discriminated against does not have to be the employee to bring a discrimination complaint with the EEOC (we’ll discuss the EEOC and how complaints are made with the EEOC down below). Any person negatively impacted by discriminatory conduct under the ADEA.

Harassment

Harassing behavior is “unwelcome conduct” that is deemed prohibited discrimination under the ADEA. Harassment can include derogatory remarks, intentional segregation amongst employees based on age, a reduction in pay based on age, and any other negative treatment based on age.

However, it is important to understand that “harassment” is actually a legal standard, and that a single derogatory remark or negative act will not be deemed harassment under the ADEA. To be considered harassment, the negative treatment or unwelcome conduct, as the EEOC states, must: (1) endure and must be a condition to continued employment; and (2) the conduct must be pervasive enough to create a work environment that a reasonable person would view as intimating, hostile, and/or abusive.

For example, suppose Sam, who is 68 years old, has worked at Canning Plant U.S.A. over the last 40 years. Sam is Canning Plant U.S.A.’s oldest employee and has worked at Canning Plant U.S.A. longer than any current employee. Several younger male employees have recently come on to the Canning Plant U.S.A. team. They don’t particularly like Sam’s “traditional” way in carrying out his position and think his methods and thoroughness are outdated and slow down the team as a whole. These young men have told Sam on two occasions over the last three months, “Hurry up, old man! You’re slowing us down”, and “Hurry up, ya old geezer, and get with the program.”

Although the other, younger male employee’s conduct was indeed, unwelcome, and was viewed as mean and minimizing by Sam, Sam would not have a valid discrimination claim under the ADEA—yet. Although management should take internal action to stop uncivil behavior within the company, the younger group’s behavior towards Sam has not been: (1) continuous and ongoing and has not had resulted in any adverse employment action towards Sam, and (2) a reasonable person would likely not view this as pervasive enough to create a hostile or abusive work environment.

Disparate Impact Discrimination

Where harassment is intentional behavior, disparate impact discrimination is generally viewed as unintentional behavior that has the same discriminatory result as intentional discrimination. Disparate impact discrimination is most cited with respect to internal business regulations that appear to be neutral at a glance, but in practice, have a discriminatory impact, and is considered illegal discrimination under the ADEA.

For example, suppose that a laboratory determines a reduction in employment is necessary. To make the determination as to which employees should be determined, several assessments are given to employees. The assessments are not based on how well the employees are working in their position, their productivity, or their accuracy. Rather, the assessments are intended to test things like “critical skills.” The same assessment is giving to all employees, and the employees with the lowest scores are terminated. Ironically, the employees terminated were overwhelmingly 40 years old or older.

This was the case in Meacham v. Knolls Atomic Laboratory, Inc., in which the Court held that the “standardized tests” used, although seemingly neutral, served as disparate impact discrimination, and that to terminate an employee, there must be some reasonable explanation other than age.

Employer Liability

Supervisors

Under some circumstances, an employer can become immediately liable on discriminatory conduct committed by a supervisor under the ADEA. An employer becomes liable when a supervisor takes an adverse employment (i.e., such as a reduction in wages, termination, demotion, etc.) which results in a hostile work environment. In this circumstance, the employer can only evade liability by proving: (1) the employer took reasonable steps to correct the harassing behavior; and (2) the employee unreasonably declined to take corrective action, as advised by the employer.

Nonsupervisory Employees

With respect to non-supervising employees, such as general employees, independent contractors (who are not considered employees at all), and even customers, an employer will be liable on the discriminatory conduct committed when the employer, knew, or should have known about the discriminatory conduct and intentionally declined to take prompt, corrective action to eliminate the discriminatory conduct occurring.

Exceptions to the ADEA

Small Businesses

Likely the biggest exception to the ADEA is that “small businesses” with 20 or less employees, do not to have abide by the ADEA’s provisions, meaning they are legally able to discriminate against applicants and employees based on their age, despite that discrimination is arguably morally wrong. However, as discussed above, keep in mind that states may implement their own anti-discrimination laws that extend beyond the ADEA’s protections.

Bona Fide Seniority Systems

A genuine seniority system—not based on age—that imparts higher wages and other employment advantages to senior employees is an exception to the ADEA. Although consideration can be given to merit, capacity, and ability, a true seniority system that will not violate the ADEA’s provisions must be based on time the employee has served with the company (i.e., the longer you have served with the company, the more employment advantages you are entitled to). This means that an employee who has 47 and has worked at the same company over the past 20 years would be entitled to more employment advantages than his 72-year-old counterpart who has only worked at the company 13 years, even though he may have more outside experience working in the same position and is more capable and able to work in the position than the 47-year-old.

Bona Fide Occupational Qualifications (BFOQ)

Another exception the ADEA is BFOQs. The ADEA permits employers to implement age-based terminations or require that certain applicants must be within a certain age range to be employed when there are reasonable and valid and reasons to do so. BFOQs are mostly applicable to occupations that have an impact on public well-being.

For example, it is not uncommon that employers like airlines and police departments are likely to require retirement at a certain age, such as 65. This is because age likely has a direct impact on the employee’s ability to competently work in the position, age inherently reduces mental and physical acuity. However, this is not to say that there is a substantial decline in mental and physical acuity between 65 and 67. Indeed, it seems that Congress recognizes this, too. Due to less travel during the pandemic, there has recently been a nationwide pilot shortage. To combat this shortage and to meet the demand in travel now that COVID-19 has eased, Congress has considered raising the mandatory retirement age to 67.

Executive and High Policymaker Retirement Age

Under the ADEA, companies are legally permitted to implement mandatory retirement programs, and require upper-level executives to retire once they reach 65. However, in order to require these high-level executives and policy makers to retire, they must at least a $44,000.00 pension each year once they retire.

A Note on Employment Advertisements and Employment Applications

Limiting applicants by their age in employment advertisements is prohibited, with little exception, under the ADEA. However, there are some exceptions to this rule when it comes to the general public’s well-being, as discussed above.

With respect to employment applications, most applicants will not be surprised to have their birth-date asked about while completing an employment application. This is common, and age and birth-date are used on many legal bases, such as to ensure that the applicant is who they say they are (i.e., identity), ability to work in the U.S., citizenship, criminal background, etc. Accordingly, employers are not prohibited in inquiring into an applicant’s age on an employment application. However, doing so is not necessarily recommended by the EEOC, because it can discourage older applicants in applying. In addition, should an applicant complain that they were discriminated against based on their age, the EEOC or a court might to take the age inquiry on the application in consideration when deciding whether age discrimination has occurred.

The Equal Employment Opportunity Commission (“EEOC”)

The EEOC is the governmental entity charged with ensuring compliance with the ADEA, among other antidiscrimination regulations, and investigates and pursues claims against employers when the circumstances so provide. In addition to its compliance role and its duty to litigate claims, the EEOC also provides, through its website, materials which provide guidance to employers and employees alike regarding their obligations and rights.

For an employee to be able to sue (i.e., bring a lawsuit) against their employer under the ADEA, the employee must bring a charge with the EEOC, asserting that the employer engaged in illegal discrimination and requesting the EEOC to take remedial action against the employer. The easiest way to bring a charge with the EEOC is through the EEOC’s Public Portal. Generally, the ability to bring a charge becomes available once the employee has made an inquiry with the EEOC and the EEOC has interviewed the employee. Keep in mind that there are time limits to bringing a discrimination charge with the EEOC. The standard time limit is 180 calendar days. However, there are slight variations in this timeline, which you can be reviewed in more detail here.

It should also be notice that the EEOC does not pursue all age discrimination claims made by employees. Many times, what seems like age discrimination can be debunked as a valid reason to terminate employment or may align with a recognized exception under the ADEA.

You will notice in our discussion about real claims down below that many cases settle prior to trial. This is due in part to the high stakes involved and the inherent reality that the EEOC generally does not take on baseless or meritless claims and conducts substantial investigation into employee allegations prior to ever accepting the case. In addition, a claim against a company by the ADEA is incredibly detrimental to a company’s business. Not only can extreme penalties be imposed against companies discovered to have engaged in illegal discrimination, but it is also damaging to their reputations, as these cases are generally highly publicized by both the EEOC and the media alike.

Real Discrimination Cases under the ADEA

Texas Roadhouse

When you think about Texas Roadhouse (provided you’ve had the pleasure to dine at one), what comes to mind is likely rolls, cinnamon better, peanut barrels, and a good steak. However, subconsciously, you may have noticed that the women and men taking your down name to put you on the ridiculously long waiting, seating you, and taking your order are seemingly young (and likely wearing some pretty skimpy shorts in the event that are women). Provided you have noticed this, you aren’t alone.

In this Massachusetts case, which eventually settled at a whopping $12 million dollars, alleged that several employees were denied employment opportunities due to their age. In particular, the case alleged that people over 40 were consistently denied employment when it came to “visible” positions at Texas Roadhouse, such as seating hosts/hostesses and servers. The applicants who were parties to the lawsuit claimed that its managers were instructed to hire younger employees “who can grow with the company,” making remarks about the applicants’ older age and questioning whether they thought they could acclimate with the much younger, existing employees.

Central Freight Lines

In Texas, several employees settled with Central Freight Lines in 2012 when they claimed that the company, their employer, used a claimed necessary employment reduction as a ruse to terminate eight older employees, with some employees serving with the company over 20 years. The employees who were terminated were all approximately 50 years old or older.  These employees, prior to their termination, were called derogatory terms by the company such as “grandpa” and “old bastard.” Despite the alleged necessary reduction in employment, these employees were replaced with younger applicant-employees. The employees who were terminated received approximately $400,000 in damages combined.

Kelley Drye & Warren

Surprisingly—or not so surprisingly—even attorneys sworn to abide by the law have not always been shown to do. Kelley Drye & Warren Law Firm, a New York legal practice, were party to a discrimination lawsuit brought under the ADEA’s provisions. The practice, which included over 300 attorneys, implemented a policy that dramatically reduced attorneys’ compensation once they reached 70, despite various attorneys over 70 proving they were as capable as their younger attorney counterparts.

One attorney who has victim to the policy and had worked at Kelley Drye & Warren over 40 years complained that he was retaliated against when complained about this policy and his compensation was additionally reduced. This attorney brought a complaint with the EEOC, and the case eventually settled, awarding the attorney $574,000. The attorney kept his position at Kelley Drye & Warren and the policy was thereby disbanded.

In Conclusion…

Ultimately, while the ADEA protects many employees against illegal discrimination based on age, it does not protect all employees against discrimination. However, where the ADEA lacks, many states have enacted their own antidiscrimination regulations that are much more expansive and provide more protections to employees who could be subjected to discriminatory policies and conduct.

And even where the ADEA and state regulations lack, most companies have implemented, or are likely to implement, civility policies prohibiting bullying and other discriminatory conduct that creates a hostile work environment. An employee’s initial step once they believe they are experiencing age discrimination—even though the conduct may not already be deemed discrimination under the ADEA’s provision—is to report the conduct to management, or at least to the persons in the level above where the discriminatory conduct is stemming. Action cannot be taken unless the action is reported, any many employers will take reasonable steps to resolve improper and discriminatory conduct to avoid action being taken against them by the EEOC.

Provided you believe you are being illegally discriminated against under the ADEA, consider bringing a claim with the EEOC so it can determine whether you have a viable claim. In the interim, you might also consider speaking with an employment law attorney who can advise you on your potential complaint’s viability and what you may be able to expect regarding possible outcomes. However, keep in mind that, to pursue a discrimination claim with the EEOC, you will need to bring a complaint with the EEOC to bring a discrimination lawsuit.