With the 50th anniversary of the enactment of the Age Discrimination in Employment Act (ADEA) on the horizon, the Equal Employment Opportunity Commission (EEOC) is focusing on the issue of age discrimination in the workplace. Age discrimination involves treating an applicant or employee less favorably because of his or her age and the ADEA “forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40”. Side note: It is not unlawful for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.
As part of its tribute, the EEOC is taking a close look at the state of the ADEA today and any challenges it may face in the future. Recently, the EEOC’s has noted its concern over the courts’ narrow interpretation of the ADEA, consequently limiting its impact.
According to the EEOC, the courts have been concentrating on other “protected” groups and have lessened safeguards for older workers. This, they believe, is due in part to opacities in the text of the ADEA itself. As corroboration, the EEOC points to several cases, including a U.S. Supreme Court decision from 2009 that made it more difficult for workers to prove an ADEA claim than a Title VII claim. Title VII, or the Civil Rights Act of 1964, outlaws discrimination based on race, color, religion, sex, or national origin. In that case, the Supreme Court held that workers bringing a claim under the ADEA must show they would not have been hit with an adverse action at work “but for” their age to prove their claim. In comparison, a worker alleging a claim under Title VII must only show their protected characteristic was a motivating factor.
In a more recent case, the Eleventh Circuit Court of Appeals ruled that job applicants could not sue for disparate impact discrimination under the ADEA because they were not employees and that an ADEA provision allowing workers to sue over a policy affecting their status as employees applies only to current workers and not applicants. The Eleventh Circuit decision rejected the EEOC’s longstanding stance that the ADEA also covers older job applicants, who feel they have been unfairly passed over because of a hiring policy, to sue.
While it is too soon to forecast how the EEOC and then Congress will address these growing concerns, it is important for employers to continue to adhere to laws prohibiting age discrimination.
For more information, contact experienced business attorney Drew E. Pomerance today.