The Age Discrimination in Employment Act of 1967 (ADEA) affords older worker far less protection from discrimination than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination on the basis of race, sex, gender, national origin and religion.
In my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace, I indisputably show that the ADEA was weak when it was adopted fifty years ago and has been eviscerated over the years by the U.S. Supreme Court. Older workers today have little real protection against age discrimination in the workplace.
Moreover, the U.S. Supreme Court accords age-based discrimination the lowest of its three tiers of scrutiny. A law that discriminates on the basis of race and sex is almost always overturned and never upheld. A law that discriminates on the basis of age must merely be rational – or just not irrational – and is never struck down.
Meanwhile, the U.S. Congress has looked the other way for years, failing since 2009 to pass the Protecting Older Workers Against Discrimination Act (POWADA), which was proposed in 2009 to fix a particularly disastrous U.S. Supreme Court ruling.
There is no real national advocate for older workers. The AARP has had no discernible impact on this problem for 50 years. The AARP apparently is too busy making billions on licensing deals that exploit its “members.”
The ADEA permits a broad swath of harmful discrimination that is illegal under Title VII.
Here are some ways that age discrimination is minimized under the ADEA when compared to Title VII:
- The U.S. Supreme Court made it far more difficult to prove age discrimination when it ruled in 2009 that a plaintiff must show that age discrimination was the “but for” or determinant reason for an adverse job action (i.e. termination, demotion). Title VII, which prohibits discrimination on the basis of race, sex and religion , requires the plaintiff to show only that discrimination was a factor.
- Employers can discriminate against older workers if the discrimination is based on a bona fide occupational qualification that is “reasonably necessary” to the normal operation of their business. [SEC. 623. Section 4 (f)(1)]. By contrast, Title VII prohibits employers from engaging in discrimination unless it is a “business necessity” and there is no less discriminatory alternative. At one time, for example, Greyhound Bus Company refused to hire drivers over age 35, maintaining that age was a bona fide occupational qualification necessary to insure public safety. A federal judge ruled in 1972 that Greyhound failed to show the policy was necessary to the normal and safe operation of its business.
- The ADEA permits employers to engage in age discrimination when it is based on a “reasonable factor other than age.” [SEC. 623. Section 4 (f)(1)] Initially, this was intended to eliminate the requirement that employers prove that all older workers are unsuitable for a specific job where individualized assessment was impractical. For example, commercial airline pilots are subject to mandatory retirement at age 65 due to generalized health concerns. The U.S. Supreme Court expanded the concept in 1993 when it ruled an employer did not violate the ADEA to fire an older worker to prevent his pension from vesting because the motive was cost-cutting and not age discrimination..
- Unlike Title VII, the ADEA does not permit plaintiffs to recover compensatory damages (i.e. emotional distress) or punitive damages. In this way, the ADEA both minimizes the suffering of age discrimination victims and fails to deter age discrimination by sharply limiting potential damages.
- The ADEA limits recovery to monetary loss (doubled in when it can be shown the discrimination was willful). If there is no economic loss, courts do not make any monetary award and even refuse to grant attorney fees to the plaintiff’s legal counsel. Employers found to have engaged in egregious age discrimination owe the victim nothing. Predictably, many attorneys are loathe to take cases where their fees are in question.
- The ADEA permits state and local governments to set mandatory retirement ages for public safety officers (including many workers who hold desk jobs). Also, the ADEA permits mandatory retirement for highly paid executives and high policy-making employees.
- A federal appeals court ruled in Villarreal v. R.J. Reynolds Tobacco (2016) that the ADEA does not provide any protection whatsoever to job applicants. So employers in Georgia, Florida and Alabama can legally use computer algorithms to target younger workers and screen out the applications of older workers. Needless to say, Title VII unambiguously protects job applicants. The U.S. Congress has done nothing to fix this appalling disparity
WOMEN SUFFER THE MOST
Age discrimination in hiring is the most common type of age discrimination in employment today. The largest number of victims of age discrimination in hiring are women – by far.
In 2015, researchers at the University of California, Irvine, and Tulane University submitted more than 40,000 job applications from fake male and female candidates in three age ranges and analyzed the rate of callback responses from employers. They found “robust evidence” of age discrimination against older women, and mixed evidence regarding older men. One factor hurting women, they suggest, is that older female workers are more likely to be judged negatively for their appearance than men.
In my book, Overcoming Age Discrimination in Employment, I encourage readers to act when they experience age discrimination in employment because failure to act can open a Pandora’s Box of pain and suffering.
Age discrimination has a profound affect on the lives of older Americans. Many are terminated in bogus restructurings and reorganizations, flounder in long-term unemployment due to epidemic age discrimination in hiring, forced to spend down their savings and, finally, to “retire” at the earliest opportunity, which will result in at least a 25 percent drop in their Social Security benefits for the rest of their lives. Age discrimination is directly responsible for the poverty and near poverty of millions of older Americans. And yet the U.S.government has not only ignored the problem but has made it worse.