Most people know that age is a “protected” category in discrimination law. The ADEA (Age Discrimination in Employment Act) is the law that amended the Title VII of the Civil Rights of 1964 to add age as a protected categroy, but did you know there are several things about that make it different than the other parts of Title VII? These include:
- It applies to companies with 20 or more employees, not 15 like the rest.
- It applies only to people over the age of 40, and provides no protection to those under 40, thus allowing discrimination against younger people based on age.
- In a “disparate impact” case there is a defense called an RFOA
- It has an additional or alternative step in filing a claim that the other laws do not have.
So let’s explore these differences. First, who is covered. Well a whole lot of people are covered today. It is estimated that half of the workforce is 40 or older. If they work for a company that has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year, then they are covered. If they work for state or local governments, employment agencies or labor organizations they are covered. If the employer is incorporated in the US, is based in the US or controlled by a US company then people are covered, with the exception that the coverage would violate a country law. If they work for they federal government then most of of them are covered. One minor issue is that although state workers are protected they do not have the right to sue the state they work for, the EEOC must sue the state.
The law specifically says workers 40 and older are protected and it makes no allowance for reverse discrimination. Therefore if you want to hire or promote a 60 year old in preference to a 30 year old solely on the basis of age you can do so. Just don’t to the reverse of that because then you are in trouble. There are some exceptions, including firefighters, law enforcement officers and certain executives and policy makers. Oh, by the way, you can discriminate on the basis of age if age is a bona fide occupational qualification. For example, as much as I may try out for the part, it is doubtful anyone would ever hire me to play Tom Sawyer in a play.
In most cases of unintentional actions of an employer that cause discrimination on a group of older workers (disparate impact) the employer has the possibility of a defense that frees them of fault if they can show that the disparate impact was the result of a practice based on a “reasonable factor other than age.” (RFOA)
In most discrimination suits, the employee claiming discrimination must go to the EEOC within 180 days of the alleged incident (300 days if their state of residency has its own antidiscrimination claim procedure.) The ADEA actually has two options. The first one is file a charge and wait for the EEOC to handle it. The second option under the ADEA is to give the EEOC a “notice of intent” to sue and then wait 30 days. This gives the EEOC an opportunity to act if they want, but if they don’t in that time frame then the individual is free to file an individual lawsuit in civil court.
There are more “in and outs” associated with this law that are based on court cases. But the definitions of discrimination and harassment and retaliation are pretty similar to the other areas of discrimination. One are commonly violated by smaller companies is advertising an open job and using terms such as “youthful”, “college student”, “recent graduation” or specifying any age under 40. There would be no problem advertising “gray hair necessary” but you are unlikely to ever see that. Heck I even seem to remember a case against AARP for age discrimination… go figure.
The Older Workers Benefit Protection Act added some additonal provisions dealing with notifications and timing, but those are for another time.
So be very careful talking about “geezers”, “old farts” “grandpas”, and “gray hairs” at least in the work place. It still works however, if you happen to drive in Florida.