Age Discrimination in Employment Act Essay
Congress enacted the Age Discrimination in Employment Act (ADEA) in 1967 (Bennett-Alexander, 326). Even though the Act was passed more than thirty years ago, age discrimination still exists today. Although some of the cases of age discrimination may not be intentional, many are. Whatever the reason for the discrimination, intentional or unintentional, it still violates the ADEA. For this reason, it is important for employers to understand the ADEA and ways in which they can prevent being sued for age discrimination.
The ADEA states:
Sec. 4 (a) It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privilege of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter (Age Discrimination in, 2).
The reason the ADEA was enacted was to force employers to evaluate employees, or prospective employees, on their skills and abilities, rather than on their age. There are a lot of assumptions about older workers, that may or may not be true, but which cannot be used in the hiring, firing, training, or evaluation process. One such assumption is that as employers get older, they can no longer adapt to changes in the business. Another is the assumption that older people cannot perform job tasks as well as somebody younger. Yet another assumption is that it is a waste of time and money to train an older employee because they will be retiring soon anyway. These assumptions are several of the reasons that forced Congress to enact the ADEA.
An employee, or prospective employee, may feel that he/she has been discriminated against because of age, but that does not mean that they will automatically win a lawsuit. There are two types of ADEA claims, disparate treatment and disparate impact. Disparate treatment claims arise when an individual alleges that their employer, or prospective employer, discriminated against them because of their age. In order for an employee to persuade the court that they have a true case of age discrimination based on disparate
treatment, they must first present a Prima Facie Case. They must prove the following four elements:
1. That he/she is 40 years old or older.
2. That he/she was adversely affected by the decision of the employer.
3. That he/she was qualified for the position.
4. That he/she was treated differently than those who are younger (Bennett-Alexander, 327).
Unlike disparate treatment claims, disparate impact claims are based on the results of an employment practice. On its face, the employment practice is neutral, but in reality it has a disparate impact on the protected class. These cases are neither overtly or covertly based on the protected characteristics, but have an unjustified effect on the protected group. It is important to remember that just because the discrimination was not intentional does not mean the employer will not be held legally responsible (Bass, 230).
Until recently, the Age Discrimination in Employment Act covered only United States companies with more than 20 employees, or foreign companies with more than 20 employees in the United States. In March of 1998, a federal appeals panel in Manhattan declared that the law covers all foreign companies conducting business in the United States with more than 20 employees total, not just 20 employees in the United States. The judged backed his decision by stating that there is not language in the ADEA requiring foreign employees to be excluded when determining which companies satisfy the 20-employee minimum. In the ruling, the judge also ruled that domestic employees of foreign companies are also protected by the ADEA (Pines).
Some believe that the ADEA is unfair. They think that some companies have good reason for firing older employees, even if the main reason is age. They are also disgusted with the fact that the Supreme Court has yet to set down specific guidelines as to when it is okay and not okay to fire based on economic reasoning (Seligman, 116-118).
There is one instance mentioned where a Supreme Court judge, Chief Justice William H. Rehnquist, makes inappropriate remarks regarding age. He is quoted as saying: “It was what you might call stereotypes about going downhill after a certain age, which…a lot of us can testify to [Laughter]” (Seligman, 116-117). This judge also said that there was no invidious discrimination in laws classifying people by age. The way in which these remarks are interpreted casts a dark shadow on the case for the ADEA. Many take his remarks to mean that older workers have never experienced the purposeful unequal treatment of other protected classes such as racial and religious minorities. Anti-ADEA groups interpret Rehnquist’s remarks to mean that discrimination against older workers is not a big deal because almost all of us will get old someday (Seligman, 117).
The group of people that are against the ADEA feel that age discrimination is quite rational and that there is good reasoning behind it. They are not firing or refusing to hire people because they simply do not like old people. They are taking these actions because of the characteristics associated with older people. They feel these characteristics would be a threat to the economic status of their business. Their reasoning is as follows:
It is true that not all mental abilities are affected to the same extent, and not all individuals slip at the same rate. An exhaustive study of age-related slippage, published last year in an issue of the journal Intelligence, showed that highly educated people with superior verbal skills retain those skills fairly well. Slippage is substantially greater with age, and the decrement is greatest in what psychologists call “fluid intelligence,” i.e., the ability to learn new tasks and see things in new ways. The ancient adage about old dogs and new tricks really has something to it (Seligman, 118).
This persistent group of people also come up with a few more compelling arguments. They believe that Congress enacted the ADEA because older people vote more. In other words, this gets Congress “in good” with the older generation. Also, they argue that Lyndon Johnson’s Department of Labor came up with studies that showed employers were irrational in preferring younger workers. How could Congress know what employers wanted better than the employer (Seligman, 118)?
Ways to Avoid a Lawsuit
Knowledge is power. The more the employer knows about the ins and outs of the Age Discrimination in Employment Act the better they will be able to protect themselves. Not only should the employer be familiar with the federal laws, but also the state laws. In many cases the state law is different, and more narrowly defined, than the federal law. Employers are not forced to hire older workers over younger workers. The younger applicant may be better qualified for the position. If this is the case, the employer has nothing to worry about, but if the employer chooses the younger employee simply because of age, he is asking for trouble (Flynn, 128).
In order to avoid a lawsuit, the hiring process should be carefully performed and monitored. The hiring staff should be thoroughly trained. When recruiting, employers should try and reach the widest array of applicants possible. They should be careful not to post job openings only in areas where the majority of the population is young, i.e., college campuses or “young” hangouts. If a company is using a recruiting agency, they must ensure that the agency is following fair employment practices. If the agency is in violation, the company can be held liable (Berluti, 38-39, Raths, 84-85).
Job descriptions must be carefully monitored. Companies have to be careful not to use words that would attract only young applicants. They should avoid terms such as “young”, “recent college graduate” and “inexperienced”. Also, when describing the job, they must accurately portray the job requirements. If an advertisement states that the job requires a skill that is fairly new, when the job minimally requires this skill, that could be seen as age discrimination (Berluti, 39).
During the interview process, an applicant should never be asked their age. The interviewer should also avoid asking questions that could be interpreted as age-related, i.e., “What year did you graduate?” The only “age” question that can be asked is whether the prospective employee is at least 18 years of age. The interviewer should give the job description accurately in order to avoid any misunderstand about exactly what is required. By doing this, the interviewer can evaluate the applicant on exactly the skills required, without any misunderstanding. The employer should conduct all interviews the same, asking all the same questions, to avoid any discrepancies between applicants. Documenting all the questions and answers is also a good precaution (Berluti, 39, Flynn, 127).
Aside from the hiring process, it is just as important to exercise caution in the firing process. Before terminating any employee, the supervisor should check with higher management to be sure the reasoning cannot, in any way, be seen as age discrimination. If the company is firing the older worker because their skills are outdated, they should first offer training. If training is not offered, the company will be seen as treating the older employee different and be at risk for a lawsuit. No matter what the reason for termination, the company needs to take extra precaution if the employee is in a protected class. They need to make sure that all complaints about the specific employee are documented as well as any conversations/meetings with the employee. It may seem like a lot of unnecessary work, but if a lawsuit arises it could be the evidence that predicts the outcome of the case. If the company hears that they may be at the receiving end of a lawsuit, they should seek legal counsel immediately (Berluti, 38-39).
Information Technology is one field that has experienced much age discrimination. People tend to make the mistake that older people are not technologically literate. By the year 2020, it is expected that 17% of the U.S. population will be older than 65, with a good percentage of those still in the workforce (Raths, 84). Due to the rapid technological advancements, it will be necessary to have adequate training programs to ensure the older generation is not left out of the “technology loop.”
Since 1993, the number of age discrimination cases against U.S. companies has sharply declined. The high demand of experienced workers, along with the increase in the over-50 population, are helping to “neutralize age-related workplace bias (Age Discrimination Declines, 16).” This trend is predicted to accelerate because many companies are looking for experienced who will be productive right from the start. Also, many small companies cannot afford training programs, so they are looking for workers who are already experienced and trained. Within the next 8 years, age discrimination cases are predicted to fall another 35% (Age Discrimination Declines, 16).
After having a better understanding of the ADEA and how it works, some sample cases may help to bring all the information together.
The Case of Roger Reeves
Roger Reeves worked at a toilet-seat manufacturing plant in Mississippi. At the age of 57, he was fired. Reeves decided to sue his employer for age discrimination. He alleges that his boss made a comment about his age saying: “He must have come over on the Mayflower” (Seligman, 116). In 1999, Reeves was awarded a total of $98,490 in damages and back pay. The employer appealed and won. The 5th U.S. Circuit Court of Appeals ruled that it was not clear age had anything to do with the termination. Roger Reeves then appealed to the Supreme Court. The Supreme Court agreed to hear the appeal based on the fact that various circuit courts were reaching different conclusions about necessary proof for an ADEA claim to be successful. As of this time, there has yet to be a final ruling on this case (Seligman, 116). Clearly, this case illustrates the confusion and complexity of ADEA claims.
The Case of Ida Morelli
This second case is the case that prompted the newly expanded portion of the Age Discrimination in Employment Act. Ida Morelli had been working for Cedel bank for ten years, when she was fired at the age of 54. Cedel is a Luxembourg bank with only one U.S. branch. Morelli brought suit against Cedel and lost. The judge told her that under ADEA, Cedel is not considered an “employer” because they have less than 20 employees in their U.S. branch. She appealed the case and the Second Circuit overturned the decision.
Judge Cudahy found no language in the ADEA mandating that foreign employees be excluded when determining which companies satisfy the 20-employee threshold. He also noted the reasons courts have found for the minimum-employee requirement in Title VII, the statute after which the ADEA was modeled, favor counting those foreign workers (Pines).
The Case of Joe Moore
This final case has yet to have a final ruling on it. This case involves Notre Dame University and their former football coach, Joe Moore. At the age of 65, Moore was fired as the offensive line football coach. He then filed suit against Notre Dame University alleging age discrimination. Moore alleges that Bob Davie, the head football coach, made several comments about his age, both to Moore and to others, prior to the termination. Davie agrees that he did make age-related comments, but disputes that age was the reason for the termination. Davie states that the termination was based on several conduct incidences, such as “roughing up” some of the players and encouraging under age drinking. Davie also contends that his age related comments were made out of respect and not mockery. A trial judge dismissed the claim saying that Moore failed to state cause of action. Moore is currently appealing the case to the 7th Circuit.
It is easy to see that ADEA claims are not cut and dry. There are many facets involved in both proving and disproving a case. The best advice available for a corporation to follow is “there is no such thing as being too careful.” It’s best to err on the side of caution. Corporations need to acquire as much knowledge about ADEA as possible, train their hiring staff, train their managers and supervisors, document everything and never make age-related comments or jokes. Remember, unintentional discrimination does not excuse one from the law.