Outten & Golden: Empowering Employees in the Workplace

Happy Anniversary, ADEA

December 12th, 2007 | Paula Brantner

Recently, a very important anniversary passed — with far too little fanfare. The Age Discrimination in Employment Act (ADEA) just turned 40 — the very age of those it operates to protect. While race and gender discrimination cases may get more publicity, the ADEA is a steady workhorse. We will all grow older, and with the demographic and economic shifts that are keeping people in the workforce longer, there are and will continue to be a vast number of people who will need its quiet protection to ensure their careers are not prematurely stunted or ended by discrimination and stereotyping.

The ADEA was signed December 15, 1967 (coincidentally, the same year of my birth, so I passed the same milestone earlier this year and now, too, enjoy ADEA protection.) It has been amended several times since its enactment. The ADEA has been extended to public employees, although its application to state employees has been limited by a U.S. Supreme Court decision in recent years. Although at one time, the ADEA permitted employers to have a mandatory retirement age of 65, this was eliminated from the law in 1986.

The ADEA is both similar to, and different than, Title VII, the law which prohibits other forms of employment discrimination, such as sex, race, and religion. Some of the differences: for example, workplaces with 15 employees are required to follow Title VII (although state law thresholds may be lower). For for age discrimination, the threshold is 20 employees. Employees who win discrimination cases under Title VII are entitled to receive, in addition to their back wages, compensatory damages for their emotional pain and suffering (although those damages are capped at $300,000 for the largest employers), and punitive damages designed to punish the employer. Under the ADEA, those who prevail can only receive back wages, plus double damages (called “liquidated damages,” only if a “willful violation” is proven.)

However, the ADEA, like Title VII, is enforced by the Equal Employment Opportunity Commission. EEOC Commissioner Stuart Ishimaru recently charged, however, in a panel commemorating the ADEA’s 40th Anniversary, that age bias “invariably comes at the end” of the EEOC’s consideration and that “quite often, it’s the stepchild” in EEOC’s enforcement regiment, even though age discrimination complaints make up about 25 percent of those received by EEOC each year. (See BNA’s Daily Labor Report, Dec. 5, 2007 (subscription only)). Notably, although the EEOC planned a large commemoration of Title VII’s 40th anniversary in 2004 (see EEOC Press Release of June 8, 2004), the ADEA anniversary has passed with nary a press release from EEOC to date.

AARP, a long-time leader on judicial and legislative efforts to combat age discrimination, commemorated the anniversary on December 4, by sponsoring a forum which featured panel discussions on the ADEA’s significance in protecting the rights of older workers, as well as how the Supreme Court has interpreted the law, and societal views concerning ageism. (See AARP Press Release). This forum was moderated by Cathy Ventrell-Monsees, President of the Workplace Fairness board. Unfortunately, this event did not receive media coverage outside the legal press, causing most of the public to miss this opportunity to more fully understand the importance of the protections the ADEA offers.

And they’re most likely going to need them.

Baby boomers are more likely than any previous generation to work well into their retirement, some for the social and mental stimulation and others for purely financial reasons. And employers say they need older workers. Shifting demographics could dramatically change the American labor force….

(See Kansas City InfoZine).

Employers have started to pay attention to age discrimination over the last 40 years — hopefully, they will continue to do so, with with such a large number of older workers with something valuable to contribute remain in the workforce.

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