The success or failure of the ADEA depends to a significant degree on the actions of the EEOC, the federal agency charged with interpreting, implementing, and enforcing federal employment discrimination law, and on the actions of state and local agencies that enforce fair employment practices and handle charges under state and federal civil rights laws. But the EEOC has at times accommodated employers’ concerns at the expense of workers’ rights.
On the other hand, after years of advocacy by AARP and hard work by the EEOC, the agency has issued regulations under the ADEA regarding practices that appear neutral on their face but have a “disparate impact” on older workers. Those regulations define the “reasonable factor other than age” defense in a way that makes the disparate impact theory a meaningful tool for fighting age discrimination in the workplace.
The EEOC has the authority to undertake directed investigations, which are 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. Since 2006 the EEOC has made the fight against systemic discrimination a top priority. This involves cases in which the alleged discrimination “has a broad impact on an industry, profession, company, or geographic location.” AARP is very concerned about what appears to be increasingly intense efforts by the business community to intimidate the EEOC and deter the agency from pursuing regulations and litigation to enforce the ADEA. These efforts have taken the form of bringing litigation challenging the agency’s authority to undertake directed (self-initiated) investigations of age discrimination, and convincing congressional committees to hold hearings challenging the agency’s enforcement activities, including in such areas as mandatory retirement policies.
The percentage of EEOC litigation resources devoted to age discrimination cases remains small, with ADEA cases representing only about 5 percent of all EEOC suits filed in fiscal year 2013. In light of the aging workforce, a concerted emphasis on cases to protect older workers and a larger number of policy-oriented age discrimination cases, particularly related to hiring, are needed to fulfill the purposes of the ADEA.
Another essential element in enforcing employment discrimination protections for older workers is the ADA. Nearly two-thirds of all workers with a condition impairing their ability to work are 45 and older. The aging of the American workforce is likely to increase the number and proportion of employees with disabilities.
For nearly a decade beginning in 1999, a number of Supreme Court decisions weakened ADA and Rehabilitation Act protections against workplace discrimination by narrowly construing what constitutes a “substantial limitation” in “major life activities.” Congress, in a bipartisan effort supported by AARP and allied disability rights and business-community advocates, sought to erase these barriers by enacting the ADA Amendments Act of 2008, and the EEOC adopted interpretive regulations in 2011. It remains to be seen, however, if courts will implement the law vigorously and thus improve redress for disability bias.
Under both the ADEA and the ADA, the Supreme Court has significantly limited the rights of state government employees to pursue their claims. For example, in Kimel v. Florida Board of Regents, 528 US 62, (2000), the Court held that the Eleventh Amendment to the US Constitution bars state employees from suing their state or state-agency employer for money damages under the ADEA. This decision means that, unless the EEOC brings the action against state government on the employee’s behalf, state employees cannot recover damages and are effectively relegated to age-discrimination protections provided solely in state law. Moreover, unlike for other types of employment discrimination that the EEOC enforces, Congress has never given the Department of Justice any enforcement responsibility in the area of age discrimination.
The Small Business Job Protection Act of 1996 established that damages for emotional distress caused by nonphysical injury, including unlawful discrimination, are taxable, whereas damages relating to a physical injury are not. There is no reason why damage awards for pain and suffering arising out of auto accidents should be nontaxable, while awards for pain and suffering arising out of unlawful discrimination are taxable. In addition awards of back pay or lump-sum advance wages—which are received in a single year—are very likely to be taxed at a higher marginal rate than if they had been received in the normal course of employment.
The EEOC issued regulations in 2012 making modest improvements to the discrimination-complaint process for federal workers, who have always faced a confusing system for complaining about age discrimination, not to mention other forms of bias affecting older workers. These changes should be monitored to ensure that the rights of federal workers who pursue a complaint are protected. Still, much more needs to be done to make it easier for federal employees to understand and participate in the complaint process. Improvements also are warranted to enhance the transparency and efficiency of EEOC procedures affecting agency investigation of charges of discrimination filed by employees of private and state and local government employers.
The federal government awards billions of dollars each year in contracts to private businesses. When government awards contracts to businesses that engage in discrimination, wage and hour violations, or other illegal and unfair labor practices, the government rewards low-road employers, makes law-abiding businesses noncompetitive, and risks undermining the quality and efficiency of goods and services the government is purchasing. Roughly one in five employees works for a business that receives federal government contracts, so requiring businesses to comply with labor standards to compete for and receive federal contracts can have a broad impact on compliance in the private sector.
Finally, since the Supreme Court’s decision in Circuit City Stores, Inc. v. Adams, 532 US 105, 132 (2001), employers have been given carte blanche to require, as an initial or continuing condition of employment, and in advance of any employment dispute that could arise, that employees use a mandatory and binding arbitration procedure instead of having access to the courts. The Court has since repeatedly confirmed and expanded on that holding (see Chapter 12, Personal and Legal Rights). One-sided imposition of pre-dispute arbitration agreements threatens the protections and enforcement mechanisms of the ADEA and other federal civil rights laws.
Administration, Investigation, and Enforcement: Policy
Equal Employment Opportunity Commission (EEOC) enforcement and oversight
The EEOC should focus its energies on addressing its primary obligation: protecting employees from workplace discrimination. 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 older workers’ protections under the ADEA.
The EEOC should focus its enforcement resources on the cases that are most difficult for private attorneys to bring, such as discrimination in hiring.
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.
State and local government workers
Congress should amend the ADEA to provide that upon referral of complaints from the EEOC, the Department of Justice has authority and funding to initiate investigations and prosecute enforcement actions against state and local government employers where it has reason to believe that a “pattern or practice” of employment discrimination exists in violation of the ADEA.
Congress should ensure that the rights of federal employees are enforced and that their ADEA and Rehabilitation Act claims are processed and pursued vigorously and equitably.
Retiree health coverage
The EEOC should withdraw its regulation exempting retiree health benefits from ADEA protections and restore appropriate guidance prohibiting discrimination against older retirees.
ADEA disparate impact enforcement
The EEOC should reach out to and inform the business community about new ADEA disparate impact standards and how to avoid unintentional age discrimination. In addition the commission should make it a priority to identify and pursue appropriate opportunities to bring litigation to enforce these new regulations.
Americans with Disabilities Act (ADA)
The EEOC should make it a priority to identify and pursue appropriate opportunities to bring litigation to enforce the ADA Amendments of 2008 and EEOC’s regulations implementing that law. The EEOC should also make it a priority to challenge systemic disability-based discrimination.
The EEOC should develop and issue guidance on what constitutes multiple discrimination and incorporate this idea into its procedures for intake, tracking, investigation, and resolution of charges.
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, policy-oriented age-discrimination cases.
To ensure that the public’s tax dollars do not subsidize age discrimination or other unfair employment practices, 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.
Remedies for state employees
Since the Supreme Court has held that the Eleventh Amendment bars state employees from suing state agencies for monetary relief under the ADEA and the ADA, the EEOC must vigorously enforce these antidiscrimination laws on behalf of state employees. Congress should enact legislation to correct this gap in ADEA enforcement so that older state employees can get monetary relief from age discrimination (similarly, under the federal Rehabilitation Act, state employees with disabilities can be eligible for monetary relief due to disability bias). Until that occurs Congress and the administration must provide the resources necessary for the EEOC to do so.
States should waive their sovereign immunity to ADEA and ADA damage suits by public employees, thereby ensuring that state employees are afforded the same protections as other older adult workers and workers with disabilities.
Taxation of damages awards
AARP supports enactment of legislation to remedy the current inequitable and inconsistent tax treatment of damages awards, in particular, the taxation of wages, compensation for emotional distress, and damages received under the ADEA and other civil rights laws.
The imposition of pre-dispute mandatory and binding arbitration of claims filed under the ADEA and other federal fair employment laws, including Title VII of the Civil Rights Act of 1964 and the ADA, should be prohibited.