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 (ADEA) protects workers who are 40 and older from age-based employment discrimination. The ADEA, passed in 1967, is modeled on and in some parts identical to, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex, color, religion, and national origin. Title VII is important to older workers not only because its interpretation influences the interpretation of the ADEA, but also because older workers may be subject to discrimination based on race, sex, ethnicity, or religion as well as age.
While Title VII and the ADEA share a common purpose—eliminating discrimination in the workplace—and have nearly identical language, there are some important differences between them. Most notably, the ADEA covers fewer employers and provides fewer remedies than Title VII. 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 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 not only constrains a court’s ability to make age-discrimination victims whole, but also discourages representation of lower-income victims by private attorneys since attorneys’ fees are generally based on a percentage of the monetary damage award.
In addition, differences have emerged in the way courts have interpreted the ADEA to provide 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.
Of note is the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc. [557 US 167 (2009)] that made it particularly difficult for workers alleging age discrimination to prevail in court. 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, rather than having to show only that age was one of the factors the employer considered. Other decisions have limited in other ways the ability of workers to bring successful age discrimination claims.
Other cases of concern include Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)—the court ruled state employees cannot get money damages from employers; Hazen Paper Co. v. Biggins, 507 U.S. 62 (2000)—discrimination based on “proxies” for age, like years of service, was held not to constitute intentional age discrimination; Kentucky Retirement Systems v. EEOC, 554 U.S. 135 (2008) —discrimination based on pension status, which could include age and years of service, was held not to constitute intentional discrimination.
Thus 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,” rather than 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 but, 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 and ensure that the standards are the same for all employment discrimination victims. The Gross decision has had ramifications beyond the age discrimination context since federal courts have 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 Chapter 12, Personal and Legal Rights—Civil Rights for background and further policies on discrimination).
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, whereas damage awards for emotional distress stemming from a physical injury are not. 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 earned in the normal course of employment.
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 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 using social media giant Facebook to look for job applicants only within specific age limits. The plaintiffs said that Facebook excluded users above certain ages from getting job ads, advised employers how to place such ads, and then generated new batches of ad recipients based on the demographics of the respondents to the initial age-biased pool of Facebook users. Similar suits charge Facebook with like patterns of sex and race bias. Myriad other social media firms no doubt are watching, wondering if they must alter business plans or models to avoid similar challenges.
STRENGTHENING AGE DISCRIMINATION LAWS: Policy
Federal and state lawmakers should enact laws against age discrimination that offer safeguards parallel to those afforded other protected classes and ensure the continued strength of these laws.
Policymakers should strengthen regulations to prohibit inquiries about age and date of birth in job applications, including in the online application process. Online application systems should not require entry of this information in order to submit the form. Requests for such information should be presumed illegal unless the employer can demonstrate job-relatedness.
Equal Employment Opportunity Commission (EEOC) regulations should make clear that any job posting or recruiting effort that directly exclude or have a disparate impact on older applicants are illegal under the Age Discrimination in Employment Act (ADEA). Such practices include preventing older job-seekers from seeing job ads and specifying qualifications (such as “digital natives,” “recent college grads,” or maximum years of experience) in ways that will have a disparate impact based on age.
Congress should enact legislation to restore the full force and effect of the 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 it should 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 a 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, and 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 enact 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 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.