Keith Mack
Age discrimination involves treating someone less favourably than others because of their age. In the United States, age discrimination is restricted under federal laws, such as the Age Discrimination Act of 1975 and the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA prohibits age discrimination against people aged 40 or older in hiring, firing, pay, promotion, and other terms of employment. However, it does not protect workers under 40, although some states have laws that protect younger workers. The ADEA is enforced by the Equal Employment Opportunity Commission, which also oversees federal laws such as Title VII of the Civil Rights Act of 1964, prohibiting sex discrimination. While age discrimination is generally prohibited, there are certain exceptions, such as mandatory retirement ages for specific occupations. The constitutionality of age discrimination laws has been debated, with a California bill being deemed unconstitutional for violating the First Amendment.
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What You'll Learn
Age Discrimination in Employment Act of 1967 (ADEA)
The Age Discrimination in Employment Act of 1967 (ADEA) is a United States labor law that prohibits employment discrimination against individuals aged 40 and above. It covers a wide range of employment practices, including hiring, promotions, wages, termination of employment, layoffs, and retirement. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC), which investigates allegations of age discrimination and can issue "right to sue" letters if conciliation efforts fail.
The ADEA was established to address the gaps in Title VII of the Civil Rights Act of 1964, which did not include age as a protected class. The ADEA specifically prohibits employers, employment agencies, and labor organizations from publishing any notices or advertisements indicating age preferences or limitations regarding employment. It also covers standards for pensions and benefits, requiring employers to provide information about the needs of older workers to the public.
While the ADEA broadly bans age discrimination against workers over 40, it is important to note that it does not prohibit all forms of age discrimination. For instance, employers can favor older workers over younger ones, even if both are over 40. Additionally, age may be considered a bona fide occupational qualification (BFOQ) in certain industries, such as hiring young actors to play young characters or age limits for pilots and bus drivers.
The ADEA has been amended over the years, with significant cases shaping its interpretation. For example, in Gomez-Perez v. Potter (2008), the Supreme Court allowed federal workers who experienced retaliation for reporting age discrimination to sue for damages. In Babb v. Wilkie, the Supreme Court ruled that plaintiffs only need to prove that age was a motivating factor in the challenged employment decision to sue under the ADEA.
The ADEA provides remedies for employees who have experienced age discrimination, including compensatory damages or reinstatement. While punitive damages are not available, intentional violations may result in liquidated or statutory damages. Additionally, employers may enforce waivers of age discrimination claims if they are "knowing or voluntary" and made with EEOC or court approval.
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Bona Fide Occupational Qualifications (BFOQ)
In employment law, a bona fide occupational qualification (BFOQ) is an exception to anti-discrimination laws. A BFOQ is a quality or attribute that employers are allowed to consider when making decisions on the hiring and retention of employees, even if this would usually be considered discrimination.
BFOQs are typically invoked when an employer has been accused of discrimination and wants to justify that the discrimination was necessary for the realization of the business's function. This could include safety reasons, such as mandatory retirement ages for airline pilots and bus drivers, or privacy reasons, such as requiring hospital staff to be the same gender as the patients they are treating.
BFOQs can also be used for authenticity in the arts, for example in film, theater, and television. Religious belief may also be considered a BFOQ, for instance, a religious school may lawfully require that members of its faculty belong to that denomination.
It's important to note that BFOQs do not include race, which can never be considered a BFOQ under any circumstances.
In the United States, both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) contain a BFOQ defense. The ADEA, enforced by the Equal Employment Opportunity Commission (EEOC), forbids age discrimination against people aged 40 or older, although it does not protect workers under 40.
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Direct and Indirect Age Discrimination
Age discrimination is a complex issue that can manifest in various forms, including direct and indirect discrimination. Direct age discrimination occurs when an employer treats an employee or prospective employee less favourably due to their age. This could involve not hiring someone because they are deemed too young for a role or setting mandatory retirement ages. It also includes discrimination based on perceived age, where an individual is treated unfavourably because of their assumed age, regardless of their actual age. Additionally, associative age discrimination occurs when an individual is treated less favourably due to the age of someone they associate with, such as a friend or spouse.
On the other hand, indirect age discrimination involves implementing neutral practices or policies that inadvertently disadvantage certain age groups. For example, requiring upper management positions to have graduate degrees may disproportionately affect younger candidates who are less likely to have completed their education. Similarly, asking for a specific number of years of experience in a job posting can indirectly discriminate against younger applicants who are recent graduates. Another example is selecting primarily younger employees for redundancy because they have shorter service and smaller redundancy payment entitlements. While this could be justifiable for legitimate cost-saving reasons, it still falls under indirect age discrimination.
In the United States, age discrimination in employment is addressed by the Age Discrimination in Employment Act (ADEA) of 1967, which protects individuals aged 40 and older from discrimination in hiring, promotion, compensation, and other terms and conditions of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC). Additionally, the Age Discrimination Act of 1975 prohibits age discrimination in programs and activities receiving federal financial assistance.
In the United Kingdom, age discrimination in the workplace is prohibited under the Equality Act 2010. This Act protects individuals from direct and indirect discrimination, harassment, and victimisation during recruitment, employment terms and conditions, promotions, training, and dismissals. Employers may objectively justify any decisions based on age, and this defence is limited to specific circumstances.
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Harassment and retaliation
In the United States, the Age Discrimination in Employment Act (ADEA) of 1967 protects individuals aged 40 and older from discrimination based on age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).
If an individual experiences harassment or retaliation at work, they can file a lawsuit or report it to the EEOC, which will investigate the allegation. It is important to note that the EEOC's laws do not cover all employers, and coverage is often based on the number of employees. Individuals should verify if their employer is required to follow the EEOC's rules and ensure they meet the time limits for reporting discrimination, which is typically within 180 calendar days.
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Older Workers Benefit Protection Act (OWBPA)
In 1990, the Older Workers Benefit Protection Act (OWBPA) was added to the Age Discrimination in Employment Act of 1967 (ADEA) to clarify the protections given to older individuals regarding employee benefit plans. The OWBPA is a federal law that requires employers to offer older workers (those who are at least 40 years old) benefits that are equal to, or in some cases, cost the employer as much as, the benefits offered to younger workers.
The OWBPA sets minimum standards for an employee waiver of the right to sue for age discrimination, ensuring that any waiver is knowing and voluntary. Employees over 40 are entitled to various benefits, such as severance pay, and cannot be pressured into signing legal waivers. It establishes specific requirements for a "knowing and voluntary" release of ADEA claims to guarantee that an employee has every opportunity to make an informed choice about signing a waiver.
The OWBPA specifies that the ADEA prohibits discrimination against older workers in all employee benefits, except when age-based reductions in employee benefit plans are justified by significant cost considerations. It declares that the phrase "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including those provided under a bona fide employee benefit plan.
The OWBPA also allows employers to take any action otherwise prohibited under the ADEA to observe the terms of a bona fide seniority system or employee benefit plan, provided it is not intended to evade the purposes of the ADEA. However, it prohibits such systems from requiring or permitting involuntary retirement because of age. The Act places the burden of proof on employers, employment agencies, or labor organizations to demonstrate that their actions to observe the terms of such systems or plans are lawful in any civil enforcement proceeding brought under the ADEA.
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Frequently asked questions
The Age Discrimination in Employment Act of 1967 (ADEA) is the primary federal anti-age discrimination law in the US.
The ADEA covers US employers with 20 or more employees, state and local governments, employment agencies, labor organizations, and the federal government. It also covers aspects of employment such as hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.
The ADEA protects individuals over the age of 40. However, some states have laws that protect younger workers from age discrimination.
Under the ADEA, it is unlawful for an employer to discriminate or harass an individual over the age of 40 because of their age. Harassment can include offensive or derogatory remarks about a person's age. It is also unlawful for employment notices or advertisements to include age preferences, limitations, or specifications, unless a statutory exemption applies.
While there is federal legislation in place to protect against age discrimination, it is not explicitly mentioned in the US Constitution. However, state employees have claimed that job discrimination based on age is unconstitutional under the equal protection clause of the state constitution.
