d 40 n2017 will mark the 50th anniversary of Public Law 90-202, The Age Discrimination in Employment Act of 1967 (ADEA), enacted on December 15, 1967.
But there is little to celebrate.
For 50 years, America’s older workers have been denied equal protection from unfounded and harmful discrimination in employment.
Federal law today not only fails to protect older workers but effectively allows employers to drive older workers out of well-paying jobs in their 40s and 50s and then out of the workforce altogether in their 60s. This has led to unemployment, underemployment and poverty in old age for many older Americans, especially for women.
The ADEA is the frail stepsister of Title VII of the Civil Rights Act, which was passed three years earlier to protect job applicants, employees and union members from discrimination on the basis of race, sex, color, national origin and religion. Age was proposed for inclusion in Title VII but was omitted when Congress decided more study was needed about the nature of the problem.
As I explain in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, the law finally passed by Congress to address age discrimination in employment was far weaker than Title VII. The ADEA both prohibits and legalizes age discrimination.
Congress gave mere lip service to prohibiting age discrimination. The substantive part of the ADEA was patterned after Title VII but the ADEA includes gaping loopholes, such as permitting “reasonable” discrimination against older workers and allowing mandatory retirement of public safety workers, state elected officials and high-placed business executives.
Unlike Title VII, the damages part of Title VII is patterned after the Fair Labor Standards Act of 1938, a federal law that regulates the payment of minimum wages and overtime. As a result, victims of age discrimination in employment are treated as if they were shorted on their paycheck and not as workers who suffered grievous and long-lasting injury. The ADEA does not permit a court to order an employer to pay punitive or compensatory damages to an age discrimination victim. The most a victim can recover is twice the amount of monetary loss suffered (if no monetary loss was suffered, the victim and his/her attorney get nothing).
If that wasn’t bad enough, the gap between the ADEA and Title VII has grown much wider over the years as a result of misguided decisions by pro-business federal courts. It is now much more difficult to prevail in an ADEA case than a Title VII case. One appeals court has even ruled that job applicants aged 40 and above are completely without protection from discrimination on the basis of age.
In addition, the Obama administration made the situation much worse when he signed an executive order that permits age discrimination by federal agencies.
A new year marks a new beginning.
One can hope the Trump administration will reverse President Obama’s discriminatory executive order permitting age discrimination by federal agencies.
One can hope the U.S. Congress and the federal courts will – at the very least – take steps to insure that older workers receive the same rights and protections as other discrimination victims. If repeal of the ADEA is not possible this year, Congress should at least pass the Protecting Older Workers Against Discrimination Act, first proposed more than a decade ago. The POWADA would reverse a particularly disastrous decision by the U.S. Supreme Court in 2006.
Hope, of course, is an unreliable vehicle for change. We must demand action. Action is long overdue.