Age Discrimination

Age Discrimination

What is age discrimination in employment? Simply stated, it is the act of deliberately discriminating against a person based solely on his or her age (Business & Legal Reports, 2002). It includes refusing to hire or promote older workers, coercing them to retire, targeting them when layoffs occur, cutting back, or restricting their employee benefits. It also includes limiting their training opportunities, job responsibilities, and duties. This deliberate discrimination may be blatant or subtle, but in either case, it is against the law (AARP.org, 2003).

The culture in the United States, unlike other cultures, values the youth. It perceives youth as having "energy, imagination, and innovation." The culture considers older employees as being less capable of performing their duties and even if they can perform their duties, the cost of retaining them becomes a "burden" on the organization (Bennett-Alexander & Hartman, 2001).

Statistically though, older employees are of value to the organization. Older workers bring more experience to the workplace. They are more reliable; experience less absenteeism, and are harder working then younger workers (Bennett-Alexander & Hartman, 2001, pg. 411). Once displaced or unemployed, older workers are limited to employment opportunities. According to the American Association of Retired Persons (AARP), 55 percent, of nearly 1 million workers 55 and over, displaced from their jobs between the years of 1997 and 1999, were employed by the year 2000 (AARP Public Policies, 2001).

What legislation deals with age discrimination?

There are many laws that protect against discrimination in the workplace, only one specifically protects against age discrimination, the Age Discrimination in Employment Act (ADEA). In 1967, Congress enacted the ADEA. It was specifically design to protect older employees over the age of 40. It also prohibits employers from retaliating against an applicant or employee who asserts his or her rights under the ADEA. The act applies to private and public companies that employ 15 or more employees.

When this act was enacted, it was to cover employees ages 40 to 65. In 1978, the upper limit was extended to age 70, but it was later removed altogether. Currently, there is no upper age limit. This came about when it became clear that an 80 year old could be as equally qualified as a younger counter part and therefore given an equal opportunity with out discrimination. Since then, mandatory retirement has been outdated.

The ADEA mirrors Title VII in terms of its substantive provisions and the procedures followed in pursuing a case. As with Title VII, the EEOC is responsible for enforcing the ADEA. In 1990 it was amended once again and The Older Workers Benefit Protection Act of 1990 (OWBPA) was added. This amendment, to section 4(f) of the ADEA, deals with the legality and enforceability of early retirement incentive programs, the waiver of rights under the ADEA, and it prohibits age discrimination providing employee benefits (Bennett-Alexander & Hartman, 2001).

The EEOC receives a large percentage of age discrimination complaints every year. In a study conducted in 1985, it was found that approximately 22,800 age discrimination complaints were filed with the federal and state EEO agencies, and more than 31,000 were filed in 1991 (HR Advantage, 2003). An article published in the March 2003 issue of the AARP Bulletin, indicated that there was a 41% increase in complaints filed from 1999 to 2002. Complaints or age discrimination can be costly to employers. In January 2003, the EEOC reported that the highest paid settlement based on age discrimination has been for $250 million (HR Advantage, 2003).

Age Discrimination and the Burdens of Proof

The Burden of Proof-Employee

When an older employee or job applicant believes that they have been discriminated against, they may file an action against the employer under the ADEA. The burden of proof then rests with the employee who must prove that the discrimination was based on age. The employee's claim for age discrimination must demonstrate the following four elements:

1) the employee is in the protected class

2) the employee was terminated, demoted, endured a pay cut, or was discriminated against in some other way,

3) the employee was doing the job well enough to meet legitimate employment expectations

4) another individual not in the protected class was treated more favorably (Bennett-Alexander, Hartman, 2001).

The first two elements appear to be straightforward to prove. The claimant must show that they are in the protected class and present a legitimate case where an employment decision resulted in an adverse affect upon the employee. The third element regarding employment expectations may not be so easy to verify.

The courts have allowed that because the employee was hired initially, the employee has the basic qualifications. However, due to advances in technology and an ever-changing workplace, employment duties and tasks may change over time. Employee's often need to learn completely new skills and upgrade existing ones. While some older workers may have a difficult time attaining new skills, not all older employees will find this to be a problem. Discrimination by employers is perpetuated when they generalize and assume that all older workers will have difficulty attaining new skills or improving existing ones (Administration on Aging, 2003). This assumption leads to the differential treatment of older workers.

The fourth element, more favorable treatment of an individual outside the protected class, can be difficult to substantiate in court. Unless the employer acted in a clearly discriminatory manner, the employee must prove that the sole reason for the employer's actions was based on the employee's age. This can be difficult to prove based on the many variables that come into play when a job position's requirements are considered. An employer must explain why the older employee was treated in a manner that differs from younger workers. It seems likely that an employer could easily allege that some other term of employment has changed, thus excluding or diminishing the older workers qualifications for the position.

The Burden of Proof-Employer

After an employee has presented information alleging discrimination, the employer must respond with legitimate and nondiscriminatory reasons for its actions. The employer is required to convince