ince 2009 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 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, 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 with respect to age discrimination in employment. 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 prohibited 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) whereas a Title VII plaintiff need only show that discrimination was one of potentially many factors.
- 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 permit employers to, for example, eliminate older workers from positions that required immediate reaction time (i.e. jet pilot). The U.S. Supreme Court expanded the concept to allow employers to eliminate older workers to cut costs and ruled it did not violate the ADEA to fire a worker to prevent his pension from vesting.
- Unlike Title VII, the ADEA does not permit plaintiffs to recover compensatory damages (i.e. emotional distress) or punitive 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 refuse to grant attorney fees.
- The ADEA permits mandatory retirement of public safety officers (including many who hold desk jobs), highly paid executives and high policymaking employees.
- One federal appeals court ruled in 2016 that the ADEA does not provide any protection at all to job applicants. Congress has done nothing to fix this.
WOMEN SUFFER THE MOST
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.
After 50 years, the ADEA both minimizes the suffering of age discrimination victims and fails to deter age discrimination.
In my new 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.