The success or failure of the Age Discrimination in Employment Act (ADEA) depends on the actions of both federal and state agencies. At the federal level, the Equal Employment Opportunity Commission (EEOC) is the federal agency charged with interpreting, implementing, and enforcing federal employment discrimination law. But the EEOC has at times accommodated employers’ concerns at the expense of workers’ rights. In addition, the business community has sought to deter the agency from pursuing regulations and litigation to enforce the ADEA.
The commission has faced lawsuits challenging its authority to pursue systemic discrimination cases (those in which the alleged discrimination “has a broad impact on an industry, profession, company, or geographic location”) and to undertake directed investigations of age discrimination (that is, higher-priority investigations ordered by the EEOC commissioners, in contrast to investigations done by a regional or state office in response to charges filed with those offices).
The percentage of EEOC litigation resources devoted to age discrimination cases remains small, with ADEA cases representing only about 6 percent of all EEOC suits filed in fiscal year 2017. In light of the aging workforce, a concerted emphasis on protection of older workers—including a larger number of cases focused on discriminatory hiring practices and other employer policies rather than individual instances of age discrimination—is needed to fulfill the purposes of the ADEA.
The federal government can also fight age discrimination and violations of other employment laws by establishing strict criteria for the billions of dollars annually awarded in contracts with private businesses. Roughly one in five people works for a business that receives federal government contracts, so requiring companies to comply with labor standards to compete for and secure federal contracts can have a broad impact on compliance in the private sector.
FIGHTING EMPLOYMENT DISCRIMINATION THROUGH PUBLIC POLICY: Policy
Equal Employment Opportunity Commission (EEOC) strategies and tools
When issuing regulations, establishing an enforcement strategy, and developing procedures for resolving charges, the EEOC should give due attention to an aging workforce and maximize protections for older workers under the Age Discrimination in Employment Act (ADEA). The commission should focus its enforcement resources on the cases that are most difficult for private attorneys to bring, such as discrimination in hiring. In addition, the commission should make it a priority to identify and pursue appropriate opportunities to bring litigation to enforce these new regulations.
The EEOC should vigorously exercise its authority to conduct directed investigations, especially where there may have been systemic and class-wide discrimination. The EEOC should also begin developing a larger number of broad-based, systemic age-discrimination cases.
Congress and the executive branch must recognize the importance of the EEOC in enforcing the ADEA, as well as other civil rights laws, by providing the commission with the necessary financial and statutory tools to carry out its mandate.
ADEA disparate impact enforcement
The EEOC should reach out to and inform the business community about ADEA disparate impact standards and how to avoid unintentional age discrimination.
Businesses that bid on federal, state, and local contracts should be required to report any complaints and determinations of unlawful and unfair practices. Firms with repeated violations that have not taken meaningful steps to get into compliance should not be eligible to receive or hold contracts.