The Age Discrimination in Employment Act (ADEA) of 1967 (amended in 1986) is a U.S. federal law that prohibits discrimination in employment against individuals who are at least 40 years old. It was enacted by the Congress to promote the employment of older people based on their ability and to prevent intentional and nonintentional forms of age discrimination. The act applies to private, public, and foreign companies with more than 20 workers located in the United States, as well as to unions and employment agencies.
The ADEA makes it unlawful to discriminate against a person because of his or her age “with respect to any term, condition, or privilege of employment.” That prohibition applies to such things as hiring, firing, job assignments, promotions, training opportunities, discipline, and employee compensation. The ADEA covers individuals age 40 and above; a worker who is 39 years old at the time of the alleged discrimination is not entitled to ADEA protection. The ADEA also prohibits employer discrimination among older workers. For example, an employer cannot hire a 50-year-old over a 60-year-old simply because of age.
Although the ADEA restricts the use of age by employers, it allows age to be taken into account in some situations. For example, in recognition of the fact that benefits costs may be higher for older workers, the ADEA allows employers to provide different benefits to older and younger workers if the amount spent on benefits received by older and younger workers is the same. The ADEA also recognizes several general defenses that may provide a legal justification for policies or practices that adversely affect older workers, as discussed in the following section.
Establishing and Defending ADEA Claims
Violations of the ADEA may be established using either the disparate treatment or disparate impact theories of discrimination. The legal defenses that are relevant and potentially available to an employer depend on which theory of discrimination the plaintiff relies on.
The disparate treatment theory of age discrimination, or intentional age discrimination, requires plaintiffs (job applicants or employees) to prove that the employer used age as a factor in an employment decision or action. Examples include the refusal to hire older workers based on stereotypes about their limited capabilities and excluding older workers from certain types of training.
In cases where it is established that the employer has a policy or practice that treats individuals differently based on age, the employer must prove that the age standard it used is a bona fide occupational qualification (BFOQ) for the job in question to avoid a finding of illegal discrimination. The BFOQ defense is narrowly construed and difficult to establish. The employer must prove that age is directly related to the ability to perform an important aspect of the job that goes to the essence of the employer’s business. It is not enough to merely show that younger workers tend to perform better on the job; it must be shown that substantially all persons over the age limit cannot successfully perform the job, or that it is highly impractical to assess the relevant ability on an individual basis. Age-based BFOQs are most commonly supported in jobs directly involving public transportation or safety, for which there is credible evidence that abilities essential to the job diminish significantly with age.
In the more typical case, where there is not an explicit age-based policy or practice and the employer denies that age played any role in the challenged employment action, the plaintiff must make an initial showing of intentional age discrimination using either direct evidence (e.g., help-wanted advertising indicating age preferences, disparaging age-related comments) or circumstantial evidence. To establish a prima facie case of disparate treatment using circumstantial evidence in a refusal-to-hire case, the plaintiff must show that (a) she or he is a member of the protected age class; (b) she or he was qualified for the position in question; (c) she or he was denied the position; and (d) someone significantly younger, with similar or lesser qualifications, received the position she or he was denied.
If the plaintiff establishes the foregoing, the employer must rebut the circumstantial evidence of intentional discrimination by producing evidence that it had a legitimate, nondiscriminatory explanation for its action (e.g., poor job performance, good faith belief that someone else was more qualified). If the employer is able to provide such a reason, then the burden shifts back to the plaintiff to show that the reason offered by the defendant is a pretext for discrimination.
Disparate impact age discrimination claims involve employer policies or practices that appear neutral on their face but that have a substantially greater negative impact on older individuals when put into effect. For example, in several cases, the employer’s use of what appeared to be age-neutral physical fitness requirements in hiring decisions were found to have a substantially greater impact in screening out older employees.
Even if a plaintiff meets his or her burden of identifying a specific employer policy or practice that adversely affects older workers, the employer may still prevail if it can show that its policy or practice involves a reasonable factor other than age (RFOA). The RFOA defense, unique to the ADEA, requires the employer to demonstrate that there is a good or rational business reason for the employer policy or practice. The RFOA defense requires a standard of justification that is significantly lower than the BFOQ defense (i.e., an RFOA is much easier to establish) and somewhat higher than the legitimate nondiscriminatory reason showing that will rebut a circumstantial prima face case of disparate treatment. Evidence that the challenged policy or practice is related to job performance would be sufficient, but it may not be necessary. For example, in a 2005 ruling (Smith v. City of Jackson, Mississippi, the Supreme Court held that the employer’s perceived need to offer junior police officers salaries that were competitive in the job market was an RFOA that justified an employer policy that adversely affected older officers.
Remedies for ADEA Violations
A range of remedies are potentially available to successful plaintiffs in ADEA cases, including reinstatement to their old job, employment, back pay, front pay, promotion, and court costs. In addition, if it is shown that the employer knew that its actions violated the ADEA or showed reckless disregard for whether its actions violated the act, then the court has discretion to award liquidated damages equal to double the amount the plaintiff is otherwise owed. Noncompensatory damages (e.g., pain and suffering) are not available.
Impact of the ADEA
Without question, the ADEA has increased U.S. employers’ awareness of and sensitivity to the use of job applicant and employee age in employment decisions. Some provisions of the ADEA have had a direct and manifest impact on employer practices. For example, the 1986 amendment to the ADEA has eliminated the use of once common age-based mandatory retirement policies for all but a relatively narrow group of employees (high-level executives and employees in selected occupations in which age is a BFOQ). The continued dramatic growth in the number of lawsuits alleging ADEA claims suggests that older workers have also become more aware and less tolerant of age-based employment discrimination. Research investigating the impact of the ADEA suggests that although evidence of differential treatment based on age can still be found in the American workplace, overall, the ADEA has had a positive impact on the employment prospects of older workers. More specifically, empirical evidence indicates that the ADEA helped boost the employment levels of older workers, particularly those aged 60 and over.
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