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This year the Age Discrimination in Employment Act (ADEA) turns 56. If it were a person, it would be at risk of, well, age discrimination.
New research from AARP shows that about two in three adults (62 percent) who are aged 50-plus in the labor force think older workers face discrimination in today’s workplace based on age. And among them, nearly all (93 percent) believe that age discrimination against older workers is common in the workplace today.
Roughly one third (32 percent) of older adults in the labor force report in AARP’s 2022 Work & Jobs Data Series survey said that in the last two years they heard negative comments in the workplace about an older coworker's age. One in six (17 percent) say they have received negative comments about their age at work. And 13 percent have been passed up for a promotion or chance to get ahead because of their age.
Questioning employers’ reasons
In most ADEA cases, the reason an employer took a particular employment action is questioned. For example, if an employee with many years of service was terminated, and no proper warning or opportunity to correct the problem(s) was given, juries seem inclined to conclude that the reason was age-related.
7 facts about age discrimination
- The ADEA protections apply to both employees and job applicants.
- Under the ADEA, it is unlawful to discriminate against a person because of age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
- The ADEA applies to employers with 20 or more employees, including state and local governments. Some states have stronger protections.
- Jokes about age, even if the employee joins in with self-deprecating humor, could still become the foundation of a discrimination claim.
- The law also prohibits harassment by coworkers, supervisors, or clients, because of age.
- The ADEA prohibits mandatory retirement ages with a few exemptions, such as airline pilots and public safety workers.
- The law does not specifically prohibit an employer from asking an applicant’s age or date of birth, but requests for age information are closely scrutinized to make sure they are made for a lawful purpose. It is best to avoid such questions.
Job notices and employment ads
Help wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals. Notices or advertisements are a violation, unless an exception applies, if they include terms such as:
- age 25 to 35,
- college student,
- recent college graduate, or
- other age-related requirements of a similar nature.
Employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as: “over age 60,” “retirees,” or “supplement your pension.” This change from the original regulation went into effect in 2007 based on the Supreme Court’s holding in General Dynamics Land System, Inc. v. Cline.
Be careful with benefits
The Older Workers Benefit Protection Act of 1990 amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
This provision permits age-based reductions in employee benefit plans where those reductions are justified by significant cost considerations. It does not apply to paid vacations and paid sick leave, since such reductions would not be justified by significant cost considerations.
Key to remember: Age discrimination continues to be an issue in the workplace. To protect themselves from age discrimination claims, employers should review their job listings and remove any language that could be viewed as ageist, and review benefit offerings to make sure older workers receive the same benefits as younger workers.
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