Equal Treatment of Age Discrimination with Other Forms of Discrimination

Background

The Age Discrimination in Employment Act (ADEA) protects workers who are 40 and older from age-based employment discrimination. The ADEA, passed in 1967, is modeled on and in parts is identical or similar to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex, color, religion, and national origin.

Title VII is important to older workers not only because its interpretation influences the interpretation of the ADEA, but also because older workers may be subject to discrimination based on race, sex, ethnicity, or religion as well as age.

Despite Title VII and the ADEA sharing a common purpose—eliminating discrimination in the workplace—and having nearly identical language, in recent years the US Supreme Court and lower federal courts have repeatedly interpreted the ADEA to provide less protection for older workers and impose greater evidentiary burdens on age discrimination victims. This marks a change as courts had traditionally interpreted and applied both statutes in similar fashion.

In Smith v. City of Jackson, Mississippi, 544 US 228 (2005), the Supreme Court ruled that ADEA plaintiffs are not limited to claims based on overt discrimination that require proof of an intent to discriminate. Instead, as is the case under Title VII, plaintiffs may also challenge the disproportionately negative effects of an employer’s policy or practice—its “disparate impact”—on older workers. However, the Court made it easier for employers to justify a discriminatory impact under the ADEA than under Title VII. They need only show that the policy or practice was based on a “reasonable factor other than age,” rather than the more stringent “business necessity” requirement under Title VII. The Equal Employment Opportunity Commission issued regulations that define the “reasonable factor other than age” defense in a way that makes the disparate impact theory a meaningful tool to fight age discrimination but, to date, few courts have relied on them.

In Gross v. FBL Financial Services, Inc., 557 US 167 (2009), the Court held that an older worker suing under the ADEA must satisfy a higher standard of proof than a plaintiff suing for employment discrimination under Title VII. Where more than one factor may have been at work, older workers must show age was the decisive factor behind their adverse treatment, rather than merely showing discrimination was a motivating factor, as under Title VII.

The Gross decision makes it harder for those with legitimate age-discrimination claims to prevail in court, and federal courts have applied its reasoning to the Americans with Disabilities Act (ADA) and other civil-rights statutes. Proposed legislation, the Protecting Older Workers Against Discrimination Act (POWADA), would restore the burden of proof to where it was before Gross and ensure that the standards are the same for all employment discrimination victims.

In addition to differences in legal standards, the ADEA reaches fewer employers and provides fewer remedies than Title VII. The ADEA applies to employers with 20 or more employees, whereas Title VII applies to those with 15 or more employees. Title VII permits victims to recover compensatory and punitive damages in addition to lost wages and benefits, but the ADEA does not. The ADEA allows recovery of lost wages and liquidated damages only. The lack of remedies not only constrains a court’s ability to make age-discrimination victims whole, but also discourages representation of lower-income victims by private attorneys since attorneys’ fees are generally based on a percentage of the monetary damage award.

Almost all states have laws that prohibit age discrimination in employment. In contrast to federal law, many states generally prohibit age discrimination alongside all other forms of discrimination in one unified statute. In these states, age discrimination is more often treated on par with other forms of discrimination, providing stronger protections than under federal law. One disturbing trend is that the Gross decision has begun to make its way into state law, as the result of legally questionable extensions by some court decisions or weakening amendments that were passed by state legislatures. (For background and further policies on discrimination, see Chapter 12, Personal and Legal Rights: Civil Rights. For more on services for people with disabilities and their rights, see Chapter 4, Retirement Income: Disability Insurance, and Chapter 12, Personal and Legal Rights: Civil Rights—Protections for People with Disabilities.)

Equal Treatment of Age Discrimination with Other Forms of Discrimination: Policy

Parallel protections

Congress should enact legislation to restore the full force and effect of the ADEA and other laws affected by the Gross decision.

Congress should also pass legislation that provides rights and remedies under the ADEA that are at a minimum on parity with Title VII of the Civil Rights Act. It should expand the ADEA’s reach by lowering the jurisdictional threshold to 15 or more, and it should provide the same kinds and amounts of damages under the ADEA as under Title VII.

State and local protections

In this policy: LocalStatedisability discrimination

States that do not have comprehensive laws against age discrimination should adopt them.

State and local laws should ensure that the right to equal opportunity in employment on the basis of age or disability is on a par with other civil rights. The rights and remedies provided in state and local laws and ordinances should, at a minimum, be modeled on those found in Title VII. State legislatures should reject proposals to weaken protections from workplace discrimination for any group, and state courts should not mechanistically apply the Gross decision to interpretations of state law, ignoring key underlying differences with federal law.