Government employees do not enjoy the same protections against discrimination as private employees. For example, the Supreme Court has ruled [in Kimel v. Florida Board of Regents, 528 US 62, (2000)] that state employees may not sue their state or state-agency employer for money damages under the Age Discrimination in Employment Act. So, unless the Equal Employment Opportunities Commission (EEOC) brings the action against state government on the employee’s behalf, state employees cannot recover damages and can only be afforded the age-discrimination protections that are provided by state law alone. In addition, unlike for other types of employment discrimination, state and local workers cannot rely on the federal government to initiate investigations and prosecute enforcement actions against state and local government employers in the area of age discrimination.
Federal workers have always faced a confusing system for lodging complaints about age discrimination and other forms of bias affecting older workers. While the EEOC has made some improvements, much more needs to be done to make it easier for federal employees to understand and participate in the complaint process. The Rehabilitation Act of 1973 requires affirmative action and nondiscrimination in employment by Federal agencies in the executive branch, including through reasonable accommodations for employees with disabilities.
Employees of both the private sector and state and local governments may file discrimination complaints with the EEOC. The EEOC should improve its procedures for investigating these complaints to make them more transparent and efficient.
DISCRIMINATION AGAINST GOVERNMENT EMPLOYEES: Policy
Congress should ensure that the rights of federal employees who pursue a discrimination complaint are protected and that their Age Discrimination in Employment Act (ADEA) and Rehabilitation Act claims are processed and pursued vigorously and equitably.
The Equal Employment Opportunities Commission must vigorously enforce antidiscrimination laws on behalf of state employees. Congress should enact legislation to correct the gap in ADEA enforcement that currently prevents older state employees from getting monetary relief from age discrimination.
States should allow themselves to be sued by public employees under the ADEA and Americans with Disabilities Act, thereby ensuring that state employees are afforded the same protections as federal and private-sector older adult workers and workers with disabilities.
Congress should amend the ADEA to provide that upon referral of complaints from the Equal Employment Opportunities Commission, 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.