There is little cause for celebration as the Age Discrimination Against Employment Act of 1967 (ADEA) approaches its fiftieth birthday.
The law has failed to prevent widespread discrimination against older workers. It was weak and riddled with loopholes to begin with and has since been eviscerated by the U.S. Supreme Court. Moreover, the problem is virtually ignored by the U.S. Equal Employment Opportunity Commission, which received almost 21,296 age discrimination complaints in 2013 and filed seven lawsuits with ADEA claims.
In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that catch-phrases like “long-term unemployment” and “early retirement” hide epidemic age discrimination in the workplace. Older workers have no real recourse to combat age discrimination in the federal court system due to the ineffectiveness of the ADEA, and general hostility toward employment discrimination claims.
When the ADEA was enacted most workers were subjected to mandatory retirement at age 65 and job advertisements routinely stated that older workers need not apply.
Over the years, the ADEA eliminated mandatory retirement for all but a few categories of workers. However, older workers today are routinely forced out of the workplace by cost-conscious employers using strategic layoffs and dismissals. This is possible because in 1993 the U.S. Supreme Court ruled in Hazen Paper Co. v. Biggins that a company could dismiss an older worker shortly before his pension was about to vest because the employer was motivated by cost savings and not age discrimination.
More recently, the U.S. Supreme Court make it virtually impossible for a worker to win an ADEA lawsuit. In Gross v. FBL Financial Services, Inc., the Court in 2009 raised the level of proof in ADEA cases far above that required under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, color, national origin and religion. Congress could have re-established parity between the ADEA and Title VII by passing the Protecting Older Workers Against Discrimination Act but has not bothered to do so.
Many employment law attorneys will not take cases involving age discrimination to federal court because they know the chances of prevailing are slim to non-existent.
Perhaps the most obvious failure of the ADEA is in the area of hiring discrimination. Many employers completely disregard the ADEA prohibition against using job advertisements that indicate “any preference, limitation, specification, or discrimination, based on age.” Even the U.S. government routinely advertises for “recent graduates.”
President Barack Obama signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent graduates.” Of course, the vast majority of recent graduates are under the age of 30. Obama’s justification for his order was that the government was at a “competitive disadvantage” in recruiting recent graduates during the worst recession in a hundred years. Really?
Victims of age discrimination have tried to fight discriminatory state and federal actions under the Equal Protection Clause of the U.S. Constitution only to hit a brick wall. The U.S. Supreme Court accords age discrimination its lowest level of scrutiny – rational basis review – which is far below that accorded to race and sex discrimination claims.
In my book, I argue that it’s time for Congress to do what it should have done almost 50 years ago – include age as a protected class under Title VII. And then let’s start enforcing our nation’s anti-discrimination laws as if they really mattered.
Age discrimination is every bit as harmful and damaging to individuals and American society as any other type of illegal discrimination. There is no moral or legal justification for treating older workers like second-class citizens. If an older worker is not capable of adequately performing a job, that worker should be treated like any other worker in that circumstance.
This originally was written on September 22, 2014. Reprinted with permission.
About the Author: Patricia G Barnes is an attorney, judge and the author of several books, including a leading book on workplace bullying, Surviving Bullies, Queen Bees & Psychopaths in the Workplace. She writes a syndicated blog about employment discrimination, bullying and abuse called When the Abuser Goes to Work at abusergoestowork.com. She is a consultant for both workers and employers in addressing problems related to workplace abuse.