AGE DISCRIMINATION IN EMPLOYMENT ACT (1967)

Julia Lamber

Excerpt from the Age Discrimination in Employment Act

(a) It shall be unlawful for an employer—

1. to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, condition, or privileges 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 an as employee, because of such individual's age; or
3. to reduce the wage rate of any employee in order to comply with this chapter.

The Age Discrimination in Employment Act (ADEA) (P.L. 90-202, 81 Stat. 602) forbids public and private employers to engage in discrimination in employment on the basis of age against persons over the age of forty. Employers cannot refuse to hire people over the age of forty, fire employees simply because they are too old, or make distinctions among employees on the basis of age. Moreover, the act prohibits retaliation against people who assert their rights under the statute. The act also covers unions and employment agencies but is rarely applied to them. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC). The act allows both the EEOC or a private person to sue for damages as well as injunctive relief.

BACKGROUND

The ADEA grew out of the congressional debate on Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. Instead of including age as one of the categories in the 1964 Civil Rights Act, Congress directed the secretary of labor to study the issues and then to submit specific proposals for prohibiting age discrimination. President Lyndon Johnson delivered a special message to Congress concerning older Americans.

Congress found that older workers were disadvantaged in their efforts to regain employment when displaced from jobs, that arbitrary age limits were commonplace, and that unemployment adversely affected the skill, morale, and employer acceptability of older workers. It also found, however, that age discrimination was rarely based on the sort of hostility behind other forms of discrimination, such as race or gender. Instead, it was based on stereotypes about older workers that were often unsupported by objective facts. In response, Congress passed the ADEA in 1967 to promote the employment of older workers and to prohibit arbitrary age policies in employment. The United States Supreme Court has held that the ADEA is a valid exercise of congressional power under the commerce clause of the U.S. Constitution but not under section 5 of the Fourteenth Amendment, which empowers Congress to enforce the nondiscrimination provisions of the Constitution.

EXCEPTIONS

There are several exceptions to the statute's nondiscrimination provisions. First, employers may use age as an employment criterion if they can justify its use. In other words, they must prove that "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." Under this exception, employers must show that age is a reasonable measure of a job qualification that is important to the employer's business. The courts have interpreted this as a very narrow exception to the general prohibition of age discrimination contained in the ADEA.

The second exception applies to employee benefit plans, such as health insurance and pension plans. Providing such fringe benefits to older workers costs employers more than providing them to younger workers (who, for example, tend to have fewer health problems). The application of the ADEA to pension plans and other fringe benefits is incredibly technical and complicated. It has been the subject of much litigation and congressional activity. Currently, the statute allows fringe benefit plans that provide unequal benefits for different age groups if the differences are justified by different employer costs or are part of a voluntary early retirement plan. For example, an employer can provide each employee with $1000 of health-care insurance even though that $1000 buys less protection for older employees.

Under the third exception, the act does not define elected officials and political appointees responsible for policy making as employees. And, although the statute was amended to expressly prohibit mandatory retirement, it does allow mandatory retirement (at age 65) of executives or other employees in high, policy-making positions. For the sake of public safety, a specific amendment also allows for maximum age and mandatory retirement (at age 55) of publicly employed firefighters and law enforcement officers.

EXPERIENCE UNDER THE ACT

The main question under the ADEA is when age distinctions are justified. Should the protection against age discrimination be taken broadly, that is, striking down most distinctions, or narrowly, allowing many distinctions? In general, the courts have interpreted the protections of the statute broadly but they have imposed fairly rigorous standards of proof.

Because the ADEA is modeled on Title VII of the Civil Rights Act, this statute expands our notion of civil rights beyond the traditional categories of race and gender. It has virtually eliminated mandatory retirement for most jobs and has changed the view of both employers and the public as to who is a qualified worker. It has dramatically increased employment among older workers.

RELATED ACT

The Age Discrimination Act of 1975 prohibits discrimination based on age in programs or activities that receive federal financial assistance. This statute is enforced primarily by the Office for Civil Rights in the Department of Education and does not cover employment discrimination. The 1975 act includes many exemptions. For example, it exempts age-based statutes enacted by elected bodies such as the minimum age to enroll in school. Because of the number of exceptions written into the statute, it has had limited impact.

See also: AMERICANS WITH DISABILITIES ACT; CIVIL RIGHTS ACT OF 1964; TITLE IX EDUCATION AMENDMENTS.

BIBLIOGRAPHY

Dobrich, Wanda, Steven Dranoff, and Gerald Maatman. The Manager's Guide to Preventing Hostile Work Environment: How to Avoid Legal and Financial Risks by Protecting Your Workforce From Harassment on the Basis of Sex, Race, Disability, Religion, and Age. New York: McGraw-Hill, 2002.

Matthews, Joseph L. Social Security, Medicare, and Pensions: The Sourcebook for Older Americans. Berkley, CA: Nolo Press, 1996.

INTERNET RESOURCES

U.S. Equal Employment Opportunity Commission. <http://www.eeoc.gov>.