The federal government, as well as almost all state governments, have laws against age discrimination. At the federal level, the Age Discrimination in Employment Act of 1967 (ADEA) protects workers who are 40 and older from age-based employment discrimination. The ADEA is modeled on, and in some parts identical to, Title VII of the Civil Rights Act of 1964. This section of the Civil Rights Act prohibits employment discrimination based on race, sex, color, religion, and national origin. Title VII is important to older workers because its interpretation influences the interpretation of the ADEA and because older workers may be subject to discrimination based on race, sex, ethnicity, or religion as well as age.
Title VII and the ADEA share a common purpose in eliminating workplace discrimination and they have nearly identical language. But there are some important differences between them. Most notably, the ADEA covers fewer employers and provides fewer remedies. In contrast, most states offer the same protections for age discrimination as other forms of discrimination.
The ADEA applies to employers with 20 or more employees, whereas Title VII applies to those with 15 or more employees. Title VII expressly includes applicants for employment, whereas the ADEA does not. Title VII permits victims to recover compensatory and punitive damages in addition to lost wages and benefits, while the ADEA does not. The ADEA allows recovery of lost wages and liquidated damages only. The lack of remedies constrains a court’s ability to make age-discrimination victims whole. It also discourages representation of lower-income victims by private attorneys since attorneys’ fees are generally based on a percentage of the monetary damage award.
Differences have emerged in the way courts have interpreted the ADEA compared with Title VII, resulting in less protection for older workers. For example, courts have imposed greater evidentiary burdens on age-discrimination victims than on people bringing claims under Title VII. As a result, these court rulings have also made it easier for employers to justify policies that have a discriminatory impact.
The Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc. [557 US 167 (2009)] made it particularly difficult for workers alleging age discrimination to prevail in court. The Court ruled that where more than one factor may have been at work, older workers must show that age was a deciding factor that caused their adverse treatment and not just one of the factors the employer considered. Other decisions have limited in different ways the ability of workers to bring successful claims based on age.
Other cases of concern include Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) where the Court ruled state employees cannot get money damages from employers; Hazen Paper Co. v. Biggins, 507 U.S. 62 (2000) which held that discrimination based on “proxies” for age, like years of service, did not constitute intentional age discrimination; and Kentucky Retirement Systems v. EEOC, 554 U.S. 135 (2008) that found discrimination based on pension status, which could include age and years of service, did not constitute intentional discrimination.
The Court has 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.” They do not have to meet 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. To date, few courts have relied on them.
Proposed federal legislation, the Protecting Older Workers Against Discrimination Act, would restore the burden of proof to where it was before Gross. It would ensure that the standards are the same for all employment discrimination victims. The Gross decision has had ramifications beyond the age-discrimination context. Federal courts have also applied its reasoning to the Americans with Disabilities Act, other civil rights statutes, and state antidiscrimination laws.
Almost all states have laws that prohibit discrimination in employment. In contrast to federal law, many states generally prohibit age discrimination alongside all other forms of discrimination in one unified statute. One disturbing trend, however, is that the Gross decision has begun to affect state laws (see also Civil Rights).
Victims of age discrimination face other challenges even when cases are decided in their favor. The Small Business Job Protection Act of 1996 established that damages for emotional distress caused by nonphysical injury, including unlawful discrimination, are taxable. In contrast, damage awards for emotional distress stemming from a physical injury are not. Also, awards of back pay or lump-sum advance wages received in a single year are very likely to be taxed at a higher marginal rate than normal earnings.
An issue of increasing importance is the application of the ADEA to hiring on social media and other digital platforms. In just a few years, pathways for securing employment have drastically changed. Scouring want-ads and sending out paper resumes is a thing of the past. It is being replaced by social media job notices and online applications. Regrettably, compliance with age discrimination and other civil rights laws badly trails the growing dominance of job search and recruitment by social media platforms.
In late 2017, older workers sued major employers for age discrimination as part of a class action. The plaintiffs asserted that Facebook allowed employers to exclude users above certain ages from getting job ads and that Facebook advised employers how to place such ads. In a landmark settlement with civil rights organizations in 2019, Facebook announced that advertisers could no longer target users by age, gender, and ZIP code for housing, employment, and credit offers.
An issue of increasing importance is the application of the ADEA and other civil rights laws to emerging practices in the hiring context.
Employers are increasingly using tools powered by artificial intelligence throughout the hiring process to increase efficiency, improve the applicant experience, and achieve a better quality of new hires. But doing so can create and perpetuate biases that disadvantage older workers, people with disabilities, and groups that have historically faced discrimination. These tools have produced harmful results when they have not been adequately tested and supervised. Laws meant to prevent or remedy employment discrimination have not yet been updated to address these concerns (see also Algorithmic Accountability and Age Discrimination).
To evaluate candidates, employers may require job applicants to complete assessments that purport to predict job performance. Employers may also use artificial intelligence for facial analysis with the goal of predicting whether an applicant would be successful in the job. But the results may be inaccurate, particularly if these tests were trained using data that is unrepresentative or inaccurate.
In addition, the algorithm may base its recommendations on factors that are correlated with successful performance but are not causal. For example, one resume screening company found that having the name “Jared” and playing high school lacrosse were accurate predictors of success. However, those factors are not job-related and do not have a causal relationship with job performance. Current law may treat these algorithmic correlations and predictions as related to job performance and, therefore, valid.
Despite potential problems, algorithms can also be used to mitigate bias. For example, some provide text analysis to help employers de-bias their job descriptions. They can identify words and phrases that may incline some demographic groups rather than others to pursue a job opportunity. In addition, algorithms can be tested, either by the employer or by a third party, to detect and remedy bias.
STRENGTHENING AGE-DISCRIMINATION LAWS: Policy
STRENGTHENING AGE-DISCRIMINATION LAWS: Policy
Federal and state lawmakers should ensure that laws against age discrimination offer safeguards parallel to those afforded other protected classes. They should also ensure the continued strength of these laws. Hiring assessments must measure traits and skills that are important to job performance. A mere correlation between a data point and the relevant job (or other opportunity) does not suffice to establish business necessity. (See also Age Discrimination.)
Congress should enact legislation to restore the full force and effect of the Age Discrimination in Employment Act (ADEA) and other laws affected by the Gross, Kimel, Hazen Paper, and Kentucky Retirement System decisions.
Congress should 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 amend section 4(a)(2) of the ADEA to make it indisputable that outside job applicants may challenge hiring policies and practices that adversely affect older individuals. It should also provide the same kinds and amounts of damages under the ADEA as under Title VII.
State and local laws should ensure that the right to equal opportunity in employment on the basis of age or disability is on 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. State courts should not mechanistically apply the Supreme Court decisions that weaken the ADEA’s protections, ignoring key underlying differences with federal law.
Taxation of damages awards
Policymakers should remedy the current inequitable and inconsistent tax treatment of damages awards. This includes the taxation of wages, compensation for emotional distress, and damages received under the ADEA and other civil rights laws.
The Equal Employment Opportunity Commission 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.