May 16, 2014

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 6: In 1967, Congress Prohibits Age Discrimination

The 1964 enactment of Title VII was a watershed moment in workplace civil rights, but the new law was selective in its protections.  Workers were protected from discrimination based on race, sex and religion, for example, but not age.  Congress initially considered prohibiting age discrimination when it debated Title VII legislation, but decided not to go that far.  Instead, it asked the U.S. Department of Labor to study the issue and report back.  The DOL reported that age discrimination in employment was a serious national problem that required federal remedial legislation.  In 1967, three years after enacting Title VII and with wide bipartisan support (remember that?), Congress enacted the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.  Title VII and the ADEA together formed the workplace achievements of President Lyndon Johnson’s “Great Society” program. 

The ADEA’s basic thrust is prohibiting discrimination in employment against applicants and employees who are 40 years of age and older.  Since its enactment the ADEA has undergone numerous amendments to broaden its scope and protections for older workers.  The statute initially provided for an age ceiling of 65 beyond which discrimination was permissible, and thus allowed mandatory retirement at age 65.  But as stereotypes of older workers increasingly fell by the wayside, the ADEA was repeatedly amended, first to raise the age ceiling and eventually to virtually eliminate any age-based consideration.  All that still remains of mandatory retirement are exceptions for airline pilots and for states and municipalities that have adopted mandatory retirement ages for their fire and law enforcement employees.

Another significant ADEA amendment was the 1990 Older Worker Benefit Protection Act, sometimes known as the OWBPA.  (Those who insist on calling the ADEA “A-Dee-A” instead of A-D-E-A call it “O-Wa-Pah”).  Other than some narrow exceptions, the OWBPA introduced an express prohibition on the use of age in determining fringe benefits.  It also requires that agreements that waive ADEA claims, like severance agreements, have procedural safeguards, certain language, and disclosures to enable an older employee to make a fully informed decision whether to sign and give up her age claims.  These safeguards were adopted as a result of a tidal wave of layoffs and reductions in force in the late 1980s that disproportionately impacted older workers and in which older workers were pressured to sign release agreements in return for severance pay that sometimes did not exceed what they were due anyway.  Court dockets became jammed with lawsuits by laid off older workers who had signed these agreements claiming that they were pressured and induced to waive their rights without full knowledge of the facts, sometimes without having received anything of value in return.  The OWPBA introduced the requirements that employers give older workers 21 to 45 days to decide whether to sign the agreement, 7 days to revoke it, and in the case of “group exit incentive plans” such as severance offered to a group of laid off employees, disclosure of the ages and titles of all employees chosen to “exit” and the ages and titles of those who being retained.

If EEOC charge filing statistics are any indication, the ADEA has been effective in providing a means for addressing ageism.  Since its 1967 enactment, age discrimination charges have become among the most common type of charge filed.  Over the last 10 years, for example, they have accounted for 22% to 26% of all charges filed, exceeded only by race and sex (and recently, disability).  And age discrimination jury awards are among the highest in employment litigation in general.  Not only do age discrimination plaintiffs’ lost wages tend to be significant due to high salary level, but also scenarios of older workers being discarded after years of loyal service are guaranteed to spark outrage in a jury.  Verdicts for successful age discrimination plaintiffs are frequently in the seven figures.

Given the frequency of age claims and huge jury verdicts, employers certainly pay attention to the risks of ageism.  But has ADEA been effective in actually decreasing ageism?  To that question, we answer a cautious yes.  Look, for example, at the 2013 survey conducted by the American Association of Retired Persons (AARP) to gauge perceptions of ageism in the workplace.  True, it reported that the two-thirds of older workers, age 45 to 74, say they have seen or experienced workplace age discrimination.  But more important, three-quarters of older workers responded that their own age has not caused their employers to treat them differently.   We’ve come a long way, baby, since the days when workers were forced to retire at age 55.


Category: EEO,