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The ADEA at 50

As the Age Discrimination in Employment Act turns 50, experts analyze how its affected the workplace and what HR and talent-acquisition leaders can do to avoid discriminating against older workers and job candidates.  

Tuesday, July 11, 2017
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The Age Discrimination in Employment Act got a bit grayer around the temples this year.

2017 marks the 50th anniversary of the bill’s enactment, which made it illegal for employers to discriminate against anyone age 40 and over in the process of making decisions regarding hiring, promotions, wages, terminations and layoffs. (The Supreme Court just declined to hear a Georgia man's appeal of an 11th Circuit ruling that said job applicants cannot sue employers under the ADEA because they are not employees.)

So how has the ADEA affected the workplace in the half-century since being signed into law by then-President Lyndon Johnson?

In terms of curbing age discrimination, the bill has been successful on some fronts, but hasn't made as much progress on others, says Ellen Storch, a partner in the Woodbury, N.Y. office of Kaufman Dolowich Voluck.  

For example, the bill has helped level the playing field for more seasoned workers in the hiring process.

"When the ADEA was first passed, employers frequently posted job advertisements that included the maximum age that they would consider for a position -- say, 45 or 55 years old," says Storch. "The ADEA made those types of advertisements illegal."

On the other hand, she says, "remedies under the ADEA are not as good as they are under Title VII or the American with Disabilities Act" in cases where an employer has been found to have discriminated against an older employee or job candidate.

For example, Title VII and the ADA provide for punitive and emotional distress damages, while the ADEA does not, says Storch.

"The ADEA does provide for liquidated damages, though," she adds. "That's just double the back pay owed. So it's nowhere near as much as [a plaintiff] could have gotten if they were successful in a discrimination case under Title VII or the ADA."

One of the most significant developments to stem from the ADEA, says Storch, actually came more than 20 years after its passage -- the Older Workers Benefit Protection Act, which amended the original bill in 1990.

The OWBPA, she explains, requires employers to be more transparent during reductions in force, and ensures that employees’ ages aren’t a factor in determining who gets laid off. For instance, employees over the age of 40 who have been let go must be notified of the ages of all other workers who were considered for layoffs, and those who were and were not chosen to be terminated.

Storch has helped many corporate clients generate charts with data that provides an age range for affected employees in a pending layoff. Anecdotally, she’s seen this data help employers to consider potential age discrimination more carefully.

"When I review drafts of those charts with clients and they see that it's very heavily tilted toward older workers, then they know they have to rethink things."

Andrew Melzer, a New York-based partner at Sanford Heisler Sharp, and co-chair of the firm's wage and hour practice, sees the ADEA -- and the OWBPA -- having a similar effect on clients.  

"Employers take heed when there's a termination or layoff, and realize there are procedures that have to be followed," says Melzer. "Generally speaking, we've seen that employers are cognizant" of how they approach employment decisions involving workers over the age of 40.

This isn't to say that age-related discrimination has been eliminated, of course. In fact, more than 20,000 ADEA-related claims were filed with and resolved by the Equal Employment Opportunity Commission in 2016 -- the ninth straight year that number has exceeded 20,000.  

With more workers staying on the job later into their lives, don't expect to see that figure decrease anytime soon, says Storch.

(According to the Bureau of Labor Statistics, those aged 55 and over comprised 20.9 percent of the labor force in 2012. The BLS projects that that number will increase to 25.6 percent by the year 2022.)

As many employees are finding they can't afford to retire, we're going to have a larger presence of older workers in the workforce," she says. "By virtue of that fact, we're going to see more claims."

Melzer makes a similar prediction, adding that the number of age-discrimination claims "doesn't mean things are getting worse for older workers."

Rather, he's hopeful that the large number of mature employees ultimately equates to "more awareness of age issues," he says. "So, over time, hopefully the light that is being shed on these issues will make an impact" in the form of increased understanding of older workers' value.

"One of the things companies have to do is recognize the benefits that older workers provide," says Melzer, "in terms of leadership, experience and all those qualities that we really think of as being associated with experience."

Jacquelyn James, co-director of the Center on Aging and Work at Boston College, has conducted extensive research focused on age discrimination in the workplace. She's found that "age bias is one of the most persistent and prevalent biases of all that we study" at the Center.

Along with Tay McNamara, co-director at the Center on Aging and Work, James has developed a series of recommendations for avoiding workplace age discrimination. For example, James and McNamara urge employers to map age demographics in critical positions, assess the extent to which hiring workers of diverse ages can support organizational goals and build on employee referral programs, and developing age-diverse interview panels for job candidates.  

"We cannot avoid having biases, and changing them is nearly impossible, at least in the short run," says James, who recently spoke at a public EEOC meeting that explored the state of age discrimination in America.

"What we can do however, is structure recruitment, hiring, training and development practices," she says, "so that biases do not creep into the employer-employee relationship."



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