13. What is the “Age Discrimination in Employment Act”?
The Age Discrimination in Employment Act of 1967 (ADEA) was passed to address discrimination in employment based upon Age. The Civil Rights Act of 1964 and the Equal Employment Opportunity Act do not protect against discrimination based on age, which makes the ADEA the primary law providing this protection. The ADEA prohibits employers with 20 or more employees from discriminating against employees who are 40 years of age and older. The Act protects against disparate treatment and policies that have a disparate impact on covered employees. Unlike under Title VII, there must be some form of discriminatory intent behind discriminatory impact cases. An employer may defend and ADEA claim by demonstrating that the discriminatory action or policy was motivated by a reasonable factor other than age. The employer does not have to show a business necessity, and it does not matter if there is a less discriminatory policy or manner of achieving the employer’s objective. Plaintiffs may achieve reinstatement in their positions and recover damages for violation of the act. A willful violation may give rise to double the actual damages (including lost wages and any losses resulting from the discrimination). Lastly, the ADEA allows for an action against employers who retaliate against employees for exercising their rights under the ADEA.
• Note: The ADEA has numerous requirements for benefits, pension, and retirement plans that expand upon the protections of the Employee Retirement Income Security Act.
• Example: Discrimination may include disparate treatment, such as failing to hire, discharging, or changing benefits. An example of discriminatory impact includes the practice of establishing mandatory retirement dates for employees. A notable exception to this rule is that high-level executives with qualified retirement plans can be forced to retire.
• Discussion: Why do you think the Federal Government seeks to protect individuals above 40 years of age from discrimination? Why do you think the legal standard for proving a disparate impact case requires a showing of intent by the employer to discriminate? Is this change in standard fair or does it unduly benefit employers? Why?
• Practice Question: Arthur is in his mid-fifties. He is applying for a job at ABC Corp to be a software engineer. He meets all of the qualifications for the job. During the interview it became obvious that the interviewer was worried that his computer skills and work speed would be negatively impacted by his age. One of the questions from the interviewer queried whether Arthur finds himself at a disadvantage when working on projects with 20-year-old colleagues? Arthur did not get the job. Do you think Arthur has a legal cause of action against ABC Corp?