Fighting Employment Discrimination through Public Policy


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 laws. But the EEOC has at times accommodated employers’ concerns at the expense of workers’ rights. The business community has also 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 and directed investigations of age discrimination. Systemic discrimination cases are those that allege discrimination that “has a broad impact on an industry, profession, company, or geographic location.” Directed investigations 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.

The percentage of EEOC litigation resources devoted to age-discrimination cases remains small. ADEA cases represented less than five percent of all EEOC suits filed in fiscal year 2019. In light of the aging workforce, a concerted emphasis on protecting older workers is needed to fulfill the purposes of the ADEA. This includes bringing a larger number of cases focused on discriminatory hiring practices and other employer policies rather than cases involving individual instances of age discrimination

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. 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.



Equal Employment Opportunity Commission (EEOC) strategies and tools

The EEOC should give due attention to an aging workforce and maximize protections for older workers under the Age Discrimination in Employment Act (ADEA). This should include when issuing regulations, establishing an enforcement strategy, and developing procedures for resolving charges. 

The EEOC should focus its enforcement resources on the cases that are most difficult for private attorneys to bring, such as discrimination in hiring. The commission should also prioritize the identification and pursuit of opportunities to bring litigation to enforce any 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. 

EEOC Funding

Congress and the executive branch must recognize the importance of the EEOC in enforcing the ADEA, as well as other civil rights laws. The commission must have 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. They should also advise on how to avoid unintentional age discrimination.

Government contractors

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.