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.
Moreover, I show 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 receives strict scrutiny and is almost always overturned and never upheld. A law that discriminates on the basis of sex receives strict or intermediate scrutiny and is almost always struck down. A law that discriminates on the basis of age must merely be rational – or not irrational – and is always upheld and never struck down.
Meanwhile, the U.S. Congress has looked the other way, failing to act to insure older workers equal justice under the law. After six years, Congress has yet to pass the Protecting Older Workers Against Discrimination Act (POWADA), which would fix a particularly disastrous 2009 U.S. Supreme Court ruling.
There is no national advocate for older workers with respect to the 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 by selling health insurance and myriad other products to its “members.”
Here are some ways that age discrimination is minimized under the Age Discrimination in Employment Act of 1967 (ADEA) when compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin:
- The U.S. Supreme Court has made it far more difficult to prove age discrimination. The Court ruled in 2009 that a plaintiff must show that age discrimination was the determinative or primary 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 in the adverse action.
- Employers can discriminate against older workers if it 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.
- 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)] Airline pilots, for example, can be forced to retire at an arbitrary age on the basis of generalized health concerns. This means that pilots who are fit may be forced out while younger pilots who are less fit due to poor lifestyle choices (i.e. obese, drug abuse) or chronic illness may continue to work. The U.S. Supreme Court also allows employers to fire older workers to cut costs and ruled it was not discriminatory to fire a worker to prevent his pensions from vesting.
- The ADEA – unlike Title VII – does not permit plaintiffs to recover for compensatory (non-economic damages, like emotional distress) or punitive damages. The ADEA limits recovery to monetary loss (doubled in a small number of cases). If there is no economic loss, no monetary damages can be awarded. The ADEA minimizes both the suffering of age discrimination victims and the potential deterrent effect of the ADEA. The limitations on damages make it difficult for victims of age discrimination to find an attorney to prosecute ADEA violations.
- One federal appeals court has ruled the ADEA does not provide any protection at all to job applicants.
The Age Discrimination in Employment Act permits a broad swath of employment discrimination that is prohibited under Title VII.
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.