Outten & Golden: Empowering Employees in the Workplace

The Legal Foundation for Age Discrimination Claims

January 18th, 2019 | Charles Joseph

In 2009, an Arizona fire department laid off its two oldest firefighters. John Guido, 46, and Dennis Rankin, 54, believed their age played a role in the layoffs. But when Guido and Rankin filed an age discrimination lawsuit, the Mount Lemmon Fire District argued the men weren’t covered by federal age discrimination protections. The department claimed that they employed fewer than 20 people, so the Age Discrimination in Employment Act of 1967 (ADEA) did not apply to their employees.

Nearly a decade later, the Supreme Court weighed in on the case. Their ruling found that all public employees, including those working for local, state, or the federal government, receive protections under the ADEA, regardless of the department’s size.

While this recent ruling clarified the scope of the ADEA, it may do little to stop age discrimination in the workplace. Millions of workers face age discrimination every day. In a recent AARP study, over 60 percent of workers aged 45 and older had witnessed or experienced age discrimination at work. In spite of the prevalence of age discrimination, AARP reports that only 3 percent of older workers report filing a complaint about age discrimination, either internally to their employer or to a government agency.

Many workers may simply lack information about their legal protections. Age discrimination falls into an unusual legal category compared to other forms of discrimination, and recent legal rulings have shaped future ADEA cases. In the 1960s, the federal government passed ADEA and Title VII. Both granted protections from workplace discrimination. While ADEA covered employees over the age of 40, Title VII protected employees from discrimination on the basis of race, color, religion, sex, and national origin.

For its first decade, the Department of Labor enforced ADEA complaints, while the newly created Equal Employment Opportunity Commission (EEOC) handled Title VII violations. In 1979, the EEOC took over responsibility for ADEA complaints, bringing Title VII discrimination under the same agency as age discrimination. Critically, the different legal foundation for age discrimination shapes the protections workers receive.

Victoria A. Lipnic, acting chair of the EEOC, claims that the perception that age discrimination is fundamentally different from other forms of discrimination negatively influences ADEA jurisprudence. Lipnic cites a Fourth Circuit Judge who argued in 2018, “age is different because we are all going to get old … but when you’re talking about gender or race or ethnicity those are immutable characteristics as the Supreme Court has said. But it’s a little bit different because all of us are going to be older or elderly one day.” Lipnic contends, in contrast, that all forms of employment discrimination derive from stereotypes of prejudices about the targeted group. While historic differences shape those prejudices, those differences should not result in fewer protections from older workers.

However, a 2009 Supreme Court decision made it more difficult to prove age discrimination compared with other forms of discrimination. The ruling held that employees filing age discrimination suits must demonstrate that if not for their age, they would have received a job offer or not been laid off. This “but for” standard makes it challenging for employees to prove age discrimination. As Laurie McCann, an AARP Foundation senior attorney, told the Washington Post, “It’s rare for an employer to say, ‘I don’t want to hire you or I am going to fire you because you are too damn old.'”

In spite of the more difficult standard for proving age discrimination, the EEOC has settled multiple ADEA claims for substantial amounts. Sprint Nextel paid $57.5 million to setting an ADEA claim. Texas Roadhouse settled an age discrimination in hiring suit for $12 million, while Livermore National Laboratory settled a class action for $37.5 million. In the largest ADEA suit in the law’s history, the California Public Employees’ Retirement System paid a settlement of $250 million.

In addition to federal laws, many states and local governments have also passed age discrimination protections. These laws may offer additional protections above the federal standard. The New York State Human Rights Law, for example, prohibits discrimination against anyone over the age of 18 on the basis of age. Rather than protecting only workers over 40, as the ADEA does, this law extends age discrimination protections to all adult workers.

Age discrimination is a growing problem for employees. As an Urban Institute report found, in 1998, 33% of workers reported being forced or partially forced to retire. By 2014, that number grew to 55%. These cases, where older workers feel pressured to retire, can violate age discrimination protections.

By understanding the legal environment for age discrimination claims, employees can protect their rights and decide whether to file a claim. As with any other employment violation, employees may wish to consult with an attorney before proceeding.

About the Author: Charles Joseph is an employment lawyer with over two decades of experience. He founded Joseph and Kirschenbaum, a firm that has recovered more than $120 million for clients, and Working Now and Then, a resource on workers’ rights.

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