Ageism in the Workplace: Understanding the ADEA

By Peter J. Preston While the Title VII of the Civil Rights Act prohibits discrimination against employees on the basis of their race, color, religion sex or national origin, it excludes age discrimination. When Congress debated and ultimately passed that statute in 1964, it voted down an amendment to include age discrimination as an unlawful employment practice. Congress changed its mind three years later, passing the Age Discrimination in Employment Act (“ADEA”) in 1967.

Like many statues, the ADEA can be somewhat confusing to small business owners. This article makes the act understandable by answering which businesses are covered by the ADEA, which employees it protects, and what the penalties are for violating it.

Who Is Covered by the ADEA?

The ADEA applies to your company if you employ 20 or more individuals. Even if your business has fewer employees, similar statues on the state or local level may also apply. It’s always best to air on the side of caution and assume that your company is subject to the same laws.

What Does the ADEA Prohibit?

The ADEA protects individuals who are 40 years old or older from discrimination in the workplace based on their age.

The ADEA protects individuals who are 40 years old or older from discrimination in the workplace based on their age. This includes hiring, wages and benefits, training, promotions, transfers or work assignments. People younger than 40 are not covered.

Help Wanted Ads

The ADEA applies to job applicants as well as current employees. Therefore, prudent companies have this act in mind even when they’re composing the text advertising job openings. In days past, it was not uncommon to see ads seeking “college students,” or “young mothers.” The ADEA places phrases like these out-of-bounds for job notices, as they tend to deter older candidates from applying. Only in the rare circumstance where age is a “bona fide occupational qualification” (perhaps for police officers or fire fighters) is it permissible to specify an age limit in a job posting.

Hiring and Firing

Most ADEA cases come from either the alleged failure to hire, or termination, of a person over age 40. The basic elements of an age discrimination case under the ADEA generally require a plaintiff to show that:

• He or she is age 40 or more;


• He or she is qualified for the position;


• He or she was not given the job, or was terminated; and


• The position either remained open, or was filled by a person under the age of 40.

The law allows an employer to terminate an employee older than 40 if the employee is unable to satisfactorily perform his or her job.

If the employee or would-be employee can establish these facts, the employer must articulate a legitimate, non-discriminatory reason for the employment decision at issue. The law allows an employer to terminate an employee older than 40 if the employee is unable to satisfactorily perform his or her job. Ultimately, it is up to the employee to show that age was the determining factor in the employer’s decision. This can be a confusing back-and-forth ritual, but looking at an actual case may help put these factors into context.

Sample Case

Walter Purcell was a 60-year-old bank employee, working as the manager of the bank’s trust department, when he was fired and replaced by a 37-year old man. These facts alone established three of the four factors described above, and Purcell sued. This left the battle about whether Purcell was actually qualified for the position.

In response to Purcell’s suit alleging age discrimination, the bank explained that he was not terminated because of his age, but because he had a history of poor performance evaluations and he had trouble with monthly reports, indicating a lack of technical skill needed for the job. The bank also presented evidence of its “pro-age” policy, arguing that this evidence showed it had a legitimate, non-discriminatory reason for terminating Purcell. Purcell responded with evidence that, among other things, the a person at the bank who decided to terminate him had expressed the belief that younger employees were more likely to be computer proficient.

The jury found for Purcell on the ADEA claim, and the bank argued that the jury should not have even been allowed to hear the case because Purcell did not have enough evidence of discrimination, but the court disagreed and allowed the verdict to stand.

This example case shows how difficult it can be for a company to protect themselves from similar discrimination suits if they are not aptly prepared to do so. It’s always in your best interest to keep your records immaculate and your managers versed in what is and isn’t appropriate when talking to their staff.

Retaliation

If a court determines that your company has violated the ADEA, it can do more than award money to the plaintiff. The remedies a court may order include:

What Are The Penalties For Violating the ADEA?

If a court determines that your company has violated the ADEA, it can do more than award money to the plaintiff. The remedies a court may order include:

• Reinstatement or promotion of the plaintiff;


• Payment of "front pay"-money damages in lieu of reinstatement to compensate for the future effects of discrimination;


• Payment of "back pay"-money damages for the time the plaintiff was out of work due to the discriminatory conduct;


• Payment of liquidated damages to the plaintiff if the company's violation of the ADEA was "willful," and


• Payment of the plaintiff's attorneys' fees.

Damages under the ADEA can be substantial.

Damages under the ADEA can be substantial, which is to say nothing of the direct expenses companies incur in defending these claims, or of the indirect expenses an ADEA case can impose in the workplace by way of diverted resources and strained morale. Counsel should be consulted whenever personnel decisions are made involving individuals over the age of 40.




Peter J. Preston is an attorney at the Chicago office of Sedgwick, Detert, Moran & Arnold LLP.

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