The following comments are made in response to the EEOC’s invitation for public comment regarding the EEOC’s discussion of the 50th Anniversary of the Age Discrimination in Employment Act of 1967 (ADEA) at its June 14, 2017 meeting.
I am a licensed attorney and the author of Betrayed: The Legalization of Age Discrimination in the Workplace (2014) and Overcoming Age Discrimination in the Workplace (2016). I am the editor of a syndicated employment law blog, When the Abuser Goes to Work and I edit a blog called Age Discrimination in Employment. I have been quoted in many national publications about the problem of age discrimination in employment in the United States.
I am surprised that it was not mentioned at your meeting that a major reason for the on-going epidemic of age discrimination in employment in America is the legal inequality of older workers.
I urge the EEOC to advocate for repeal of the ADEA. Age should be added as a protected class to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, religion, color and national origin. This would insure uniform treatment under the law of all forms of harmful employment discrimination, including age discrimination. It is not a radical move; Australia did it in 2008.
Age discrimination in employment currently is treated by the EEOC and federal courts as a pesky, lesser and secondary offense. This, despite an overwhelming research showing that age discrimination, like other forms of discrimination, is based upon false stereotypes, irrational fears and deep-seated animus. Moreover, age discrimination, like other forms of illegal discrimination, has a devastating impact on both individuals and the American economy.
Age was originally proposed for inclusion as a protected class in Title VII in 1964 but was omitted when it was determined more study was needed. When the ADEA was passed in 1967, it was far weaker than Title VII and it became weaker still in succeeding years due to adverse and some would argue arbitrary rulings by federal appeals courts (i.e. Villarreal v. R.J. Reynolds Tobacco Company, 806 F. 3d 1288 – (11th Cir. 2015) and the U.S. Supreme Court (i.e. Gross v. FBL Financial Services, 557 US 167 (2009).
Attorneys today are reluctant to accept ADEA cases because even patently obvious cases are almost impossible to win due to arbitrary barriers erected by the law and court system. Also, unlike Title VII, the ADEA does not provide compensatory or punitive damages. Indeed, a plaintiff who has incurred no monetary damages may get no damages (or attorney fees) whatsoever despite having suffered egregious age discrimination. Lesser damages under the ADEA is a major deterrent to the enforcement of older workers’ rights.
The ADEA also is burdened by antiquated and arbitrary rules, such as permitting age discrimination that is not required by ‘business necessity,” and including mandatory retirement for public safety workers, which forces older workers out of the workplace when they are healthy and fit for their jobs.
After 50 years of inequality for older workers, isn’t it time to do what Congress should have done in 1964 – include age as a protected class in Title VII.
In addition to the above, I propose the following:
- The EEOC should develop a national action plan to address age discrimination in employment.
- The EEOC should demonstrate leadership and courage to ensure that older workers are protected from what is now unabashed, epidemic and unaddressed age discrimination in hiring by private sector industries, including high tech and academia, and our nation’s largest employer, the federal government.
- The EEOC should ensure that an appropriate percentage of its resources are used to combat age discrimination. In 2016, the EEOC filed only two lawsuits with age discrimination complaints, despite the fact that age discrimination complaints comprise almost a quarter of all complaints received by the Agency. This indicates a lack of commitment by the Agency to enforcing the ADEA.
- It should be a top priority for the Agency to educate EEOC staffers, including hearing officers, about the nature and impact of age discrimination, which is currently given short -shrift by many in the Agency.
- The EEOC should introduce a national education campaign to dispel myths and stereotypes about older workers.
- The EEOC should discontinue the EEOC Attorney Honor Program which results in disparate impact age discrimination in hiring. This program sends a message to private sector employers that age discrimination is appropriate and will be tolerated by the Agency. Any applicant, regardless of age, should be eligible for any job at the EEOC.
Throughout and since the Great Recession, millions of America’s older workers (especially women) have been forced out of the workplace by age discrimination and into an impoverished retirement. It is long past the time for the EEOC to step-up and demonstrate an unwavering commitment to combat all forms of irrational and harmful discrimination, including age discrimination.