Modern American culture is a culture obsessed with youth and the creative energy of youth. The concept of the “wisdom” of the elderly or the need to obtain advice from those with experience is often challenged by the long American tradition of innovation and invention. The myth pervades that a person loses creativity and energy once past forty.

Combined with that myth is the simple economic fact of life that the longer a person is employed in many jobs, the higher the salary and benefits will be and employers often wish to replace older workers with younger workers simply to avoid the higher cost.

The Federal Government has reacted to these facts by passing various statutes meant to protect the elderly in the work place.

Age discrimination occurs when an older person is pressured in the workplace to leave. Under the law a person's employment cannot be jeopardized solely because of age. This prohibition applies to employer acts that would constitute indirect pressure to leave.

Today, "older worker" constitutes those over the age of 40. Employees who fall into this group have various protections that they can utilize to avoid harm and this article shall briefly outline the law and the remedies available.


Historical Basics

Until the early twentieth century discrimination based on age was not a major issue in most professions. Most people worked until they reached an age at which they were no longer able to be productive. For the remainder of their lives they would be taken care of by their families. With life spans normally limited to mid- or early sixties, “retirement” was only a few years before death and the cost of health care was minimal because health care was seldom available.

With the rapid rise in industrialization and slow rise in unions, efforts were made to create guidelines for how long people should stay on the job. In theory, the introduction of pension programs and health plans allowed workers the opportunity to stop working when they reached old age, secure in the knowledge that they would be able to take care of themselves financially and perhaps have health benefits in their retirement. During the Depression, additional programs such as Social Security made it still easier for people to retire.

In the years after World War II, changes in the workplace created a shift in policies and attitudes. Technology made many jobs obsolete, and employees had to learn more and learn faster. As the postwar "baby boom" generation came of age, a growing emphasis on youth pervaded an increasingly crowded workplace. People who had reached even middle age began to face increasing pressure to leave the workforce. Sometimes they were simply forced out. Older workers who happened to be women or members of a minority group were subject to discrimination on additional factors.

Difficult economic times increases the pressure on the workforce with more applicants seeking fewer jobs. Cutbacks in work force achieve better reduction in costs if the more senior members of the workforce are removed. Thus age discrimination becomes more likely in hard times.

Discrimination of any kind is proven by either direct or indirect evidence under the law. Direct evidence can include outright statements an employer makes about a particular job candidate that shows intent to exclude. Indirect evidence can be when an employer creates job qualifications vague enough to exclude certain people even though everything appears legal and ethical.

Typical examples: In age discrimination cases, direct evidence would be an employer telling an older worker, "You're doing that job much more slowly than the others," or "I don't think you'll be able to learn our new computer system." Indirect evidence would be when a potential employer turns down a qualified older job applicant in favor of someone younger. Of course, if the younger employee is demonstrably better qualified, it may not be a case of discrimination. But if, for example, a qualified older worker is passed over for a job and the employer continues to interview other candidates, the employer may be deliberately excluding the older candidate.


Retirement Plans

While there are many older workers who want to continue in the jobs because they enjoy their work, many others continue to work because they cannot afford to retire. Thanks in large part to unions, many employees are guaranteed a good pension from their company after a set number of years, regardless of their age at retirement. Known as "30-and-Out" programs (based on a United Auto Workers deal with Chrysler in 1973), they allow workers to put in their 30 or however many years and retire with full pension benefits instead of having to wait until age 65 (when people can collect their full Social Security benefits).

Many companies offer some sort of early retirement package for employees, in part to make room for younger workers but also in part to cut down on the number of top-salaried people on the payroll. Such offers are not illegal and in fact can be beneficial to both the company and the employee. This takes a different turn when the employee is being pressured to accept an early retirement plan.


Mandatory Retirement Age

Setting a mandatory retirement age is illegal in most professions, although there are exceptions. Federal law recognizes ADEA exemptions in the case of such employees as air traffic controllers, federal police officers, airline pilots, and firefighters. In 1996 Congress passed legislation that allowed state and local governments to set retirement ages for these and similar employees to as young as 55. State and local judges are often required to step down at a certain age as well. In addition to mandatory retirement ages, many public safety jobs also have mandatory hiring ages, thus closing the door to potentially otherwise qualified people. The argument against mandatory retirement claims that it would be fairer to all employees to rely on periodic fitness testing, since some older workers may be just as able (or perhaps more so) to carry out their duties as younger ones.


Implicit Discrimination

Blatant discrimination is deplorable, but it is easy to spot and usually easy to determine accountability. More ambiguous, and thus more dangerous to older workers, is implicit or subtle discrimination. This can take many forms, and by its nature it is probably more pervasive. Some typical examples:

  • A longtime employee's supervisor makes comments in his or her presence about the benefits of retirement
  • An employee whose company "restructures," and who subsequently ends up with a smaller office down a little-used corridor
  • An employee who gets passed over for promotions, always in favor of younger staffers
  • A worker who is reassigned to a job with fewer responsibilities, even if the assignment is considered a lateral move
  • An employee who is no longer sent on business trips, provided membership in professional associations, or encouraged to take job-related courses

What makes subtle discrimination so much more dangerous than blatant discrimination in the minds of many experts is that it is harder to prove. Perhaps the supervisor is making comments about retirement because he or she is looking forward to being retired. Maybe the employee who was passed over for promotions has never asked to be promoted and thus is considered to be lacking in leadership initiative. Subtle forms of age discrimination may make older workers uncomfortable or unhappy enough that they will retire, even though they may not be able to pinpoint actual discrimination as their reason for leaving. The bottom line, however, is that such discrimination is no more acceptable in the workplace than blatant actions directed at older workers. Determining the difference between innocent remarks or coincidence and true discrimination may be difficult, but an older worker who suspects discrimination should know that taking action is a viable option.


Statutory Federal Rights

Older workers have legal protection from age discrimination. The Age Discrimination in Employment Act (ADEA) was passed by Congress in 1967. The ADEA extends the law as spelled out in the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, creed, color, religion, or ethnic origin. (Title VII of the Civil Rights Act is important to older workers who could suffer discrimination based on any of those factors as well.)
Under the ADEA, workers age 40 and above are protected from discrimination in recruitment, hiring, training, promotions, pay and benefits, dismissal and layoffs, and retirement. The Older Workers Benefit Protection Act (OWBPA), passed in 1990, guarantees protection against discrimination in benefits packages. For example, OWPBA sets strict guidelines prohibiting companies from converting their pension plans in a way that would provide fewer pension dollars to older workers.


Supreme Court Rulings

While the ADEA has been a critical factor in guarding against age discrimination, certain decisions by the U.S. Supreme Court havemade it somewhat less effective. Part of the reason is that the Civil Rights Act of 1991, which amended Title VII of the 1964 Civil Rights Act, did not similarly amend the ADEA. Thus, although Title VII allows victims to recover compensatory and punitive damages since the 1991 amendment, the ADEA does not. Recent Supreme Court actions have suggested that using pension eligibility or high salaries as a basis for layoff decisions (a practice that generally has the greatest impact on older workers) may not be discriminatory.

In 2000, the Supreme Court ruled in Kimel v. Florida Board of Regents that states are protected from ADEA suits by individuals. Nevertheless, most states have their own prohibitions against age discrimination, often providing for more effective relief than at the Federal level. Further, legislation was introduced in the U.S. Senate that would require states agencies to waive their immunity from ADEA suits or else forfeit federal funding.

Most ADEA suits are based on charges brought before the Equal Employment Opportunity Commission (EEOC). The EEOC is responsible for investigating charges of age discrimination and seeking remedies. Rarely does it file actual lawsuits (in fact EEOC litigation across the board dropped through the 1990s and into the twenty-first century), but individuals are allowed to sue on their own.
In 1995 the EEOC conducted a comprehensive review of its procedures and developed new National and Local Enforcement Plans. These plans provide guidelines for dealing with discrimination issues against older workers.

The EEOC has often suffered from inadequate funding, especially in today’s economy, which can limit its ability to investigate charges quickly. EEOC chooses its lawsuits carefully.


Bona Fide Occupational Qualifications

Under the law, not all age-related job exclusions are discriminatory. In fact, both Title VII and the ADEA recognize exclusions known as bona fide occupational qualifications (BFOQs) as legitimate. For example, a kosher meat market can legitimately require that it can hire only Jewish butchers. An employer seeking a BFOQ exclusion must be able to prove that those from within an excluded group would not be able to perform the job effectively. Thus, a moving company might be able to exclude a 75-year-old as a mover because moving requires heavy lifting and driving long distances. An accounting firm would be unable to make a similar claim in trying to force a 75-year-old bookkeeper to retire solely based on age.


Damages and Employer Reactions

Age discrimination has various negative effect on older workers. The immediate effect is loss of a job or limited employment opportunities. Not only is it harder for an older worker to keep a job, it becomes harder for an older worker to find a new job. (Economic realities often dictate that early retirees may have to supplement their pensions before they turn 65 and collect their full Social Security benefits.)

The more subtle psychological effect is that older workers become frustrated by their situation. If they are working, this could affect their productivity, which could feed the stereotypes about older workers. If they are looking for work, they may simply give up, believing that they are unemployable.

These types of damages are less easy to demonstrate than those that are provable by loss of employment by inappropriate firing. They are also long lasting in the psyche of the worker who feels both undervalued and, often, betrayed by an employer long served.
Individuals who think they are victims of age discrimination can turn to the local office of the EEOC for assistance. The EEOC will provide information about how to file charges at the state and federal levels. It is also useful to contact the state office of civil rights. They can also speak to private legal counsel as to bringing their own legal action to remedy the wrongs.

Employers faced with such claims have available the various defenses itemized above and should, of course, obtain guidance as to their processes and procedures to ensure that such discrimination does not occur. Education of managers is vital, as are quick and effective remedial efforts should any manager be found to have violated proper procedures.

Employment manuals should be created which clearly prohibit discrimination in the workplace and are in conformity with the law. Such manuals are a vital tool in the proper operation of a business and are often critical items of evidence in hearings and trials. Failure to have such a manual can have an extremely damaging effect in such forums. Any employment attorney can assist in creating the appropriate manual and implementing same.

The following links may be useful for the employee seeking relief or an employer seeking guidance.

601 E Street NW
Washington, DC 20049 USA
Phone: (202) 434-2257
Fax: (202) 434-2588
URL: http://w
Primary Contact: William Novelli, CEOM

Equal Employment Opportunity Council (EEOC)
1801 L Street NW
Washington, DC 20507 USA
Phone: (202) 663-4900
Fax: (202) 376-6219
Primary Contact: Cari M. Dominguez, Chairperson

National Council on the Aging
409 Third Street, Suite 200
Washington, DC 20024 USA
Phone: (202) 479-1200
Fax: (202) 479-0735
URL: http://w

U.S. Department of Health and Human Services, Administration on Aging
330 Independence Avenue SW
Washington, DC 20201 USA
Phone: (202) 619-0724
Fax: (202) 260-1012