Age Discrimination and the Law – A Primer

CareerPro Inc.Talent Acquisition

As the aging of the workforce goes up and many of the baby boomers reaching retirement, the complaints about age discrimination have increased. Stephenie Overman in Fortune suggests that it may only be getting harder to prove you have been wronged. In 1965, Baby Boomers made up 40% of the population. Today they make up over a quarter of the population. Noted generations experts like Tim Moore, our concern that “older applicants” may face both overt and quiet discrimination

In an extended interview and talk with noted Labor and Employment attorney William Joseph Austin Jr. from Ward & Smith law firm, we covered a number of critical issues related to age discrimination. Statistics on these cases don’t lie.  The Equal Employment Opportunity Commission (EEOC) reports increases in past years that the number of age discrimination charges has increased over the past few years. Even if no complaints are filed it doesn’t take much grey hair to get the feeling that age discrimination happens even if not overtly. It’s out there for sure.

In a recent confidential conversation with a Fortune 500 human resources manager, I asked him if he thought that there was a lot of age discrimination going on. He simply said: “Hell yes.” That doesn’t mean everybody runs to court. Employment and labor attorneys echo points made by Fortune and Overman, suggesting that most or at least many people don’t want to tie up financial and emotional resources to fight to get their old job back. They would rather pursue finding a new job. That’s probably the healthy way to go for most people but for job seekers it’s still very daunting.

So I turned to one of our favorite resources at Career Pro Inc. William Joseph Austin III (Joe Austin) of Ward & Smith Law Firm for guidance on this issue.

John O’Connor: Joe, what do we need to know as a foundation about age discrimination issues?

Joe Austin: Age discrimination is illegal.  That is so under the federal ADEA as well as state law but not everyone of a certain age is entitled to legal protection.  Individuals over the age of 40 are covered by the ADEA.  That law was in the vanguard of legal protection afforded in the workplace on the basis of age.  A person who is over forty and has suffered an adverse job action because of his or her age may make a charge of discrimination under the ADEA against a covered employer.  Neither independent contractors nor partners in partnerships are protected, however, just employees.

John O’Connor: Tell us about any limitations.

Joe Austin: Coverage under the ADEA is slightly more circumscribed then under Title VII, which is the federal law that protects against workplace discrimination on the basis of race, sex, religion, national origin, and color.  Title VII applies to employers who have at least 15 employees, while the ADEA applies to private employers who have 20 or more employees. Thus, the employees of small private businesses generally lack protection under employment laws, and the concept of “small business” is broader under the ADEA then for the laws that protect other traits and classes.

John O’Connor: Does the ADEA apply to state and local governments?

Joe Austin: The ADEA does apply to state and local governments, labor organizations and employment agencies.  Coverage of employment in state government gets more complicated, however, as the United States Supreme Court has held that state employees may not sue the state for monetary damages under the ADEA. Sovereign immunity applies in such cases unless the state consents to be sued or another exception applies.  The ADEA still may be enforced against the states by the EEOC, and state employees may sue state officials for declaratory and injunctive relief under the law. To fill in some of the gaps in individual protection, complementary state laws have been enacted.  State employees in North Carolina, for example, have further protection against age discrimination within the State Personnel System.  Governed by State law, all State departments and agencies and all local political subdivisions of the State of North Carolina are required to give equal opportunity for employment and compensation without regard to age (40 years of age or older) except where specific age requirements comprise bona fide occupational qualifications necessary to proper and efficient administration of public business.  Career State employees also have the right to grievance appeal in cases of alleged age discrimination.  Other State employees and applicants for State employment also have the right to contest personnel actions or issues based on age discrimination.

John O’Connor: How does this apply to the Federal Government?

Joe Austin:  Yes, the ADEA does have particularized provisions protecting Federal employees. They are very similar to those that apply to private employment but should be specifically reviewed and referred to in the case of a Federal employee.

John O’Connor: Are there any other coverage issues we need to be aware of?

Joe Austin: In recognition of the trend toward globalization we make another passing reference to provisions of the ADEA that make the law applicable to companies that are incorporated in a foreign country but are controlled by a U.S. employer.  Likewise, U.S. citizens employed by a U.S. employer who work in a foreign land are covered unless compliance with the ADEA would violate the laws of that country. So, the ADEA has many rooms, and state government employees have protections that cover gaps in their ADEA protection.

John O’Connor: There seem to be a lot of moving pieces to the law and the labor force.

Joe Austin: The law relating to age in the labor force has many facets indeed.  To get to the heart of protection against age discrimination we will do well to focus, and here it will be on age as a protected status in private sector employment in the United States. For these cases, the ADEA includes similar enforcement procedures as Title VII.  The Equal Employment Opportunity Commission or EEOC is the agency with original jurisdiction over charges of age discrimination.  A charge of age discrimination must be filed ordinarily within 180 days of the last discriminatory act. The EEOC will investigate the charge, attempt to reconcile the parties, and then either sue the employer or issue a right to sue letter to the charging party, that being the person who has made the charge of age discrimination.  The charging party has 90 days to file suit upon issuance of the right to sue latter.  The charging party may then be referred to as the plaintiff.

John O’Connor: How does this apply to North Carolina state law?

Joe Austin: A North Carolina state law prohibits age discrimination in private employment but is not age specific.  It applies to employers who have 15 or more employees.  Otherwise we would reasonably expect that ADEA standards would be applied under the state law.  However, there is no statewide agency to take charges or to enforce this law against a private employer.  As a separate and distinct cause of action it is seldom invoked by plaintiffs other than as a makeweight, and we will discuss it no further here.

John O’Connor: Tell us a little more about the ADEA then.

Joe Austin: In the private sector then, the mainstay against age discrimination in the workplace is the ADEA.  Subject to the limits already discussed, it prohibits discrimination on the basis of age in hiring, firing, and all terms of employment, including compensation, conditions and privileges.  So, it not only applies to hiring, placement, promotions, compensation, demotions, transfer, discipline, and discharge but also to leave and employee benefit plans such as health coverage and pensions.

John O’Connor: So what happens when an over-forty person gets passed over for a promotion or is not hired or laid off in favor of a younger person?

Joe Austin: When the over-forty individual has been passed over for a promotion, or not hired, or laid off in favor of a younger person, the latter must be substantially younger than the charging party to give rise to an ADEA charge.  The younger person may even be in the protected class (age 40 or above) but the age difference in any case must be significant.  The courts have not offered up a precise definition of significant age difference under the ADEA, but courts have held that 8 – 10 year age differences were sufficient to allow age discrimination cases to go to the jury.  Less than three years has been held insignificant or insubstantial.  Perhaps a helpful intuitive, albeit entirely idiosyncratic, way of looking at the issue from a middle-age perspective is to consider whether the comparator could have been in high school or college with you.  If so the age difference is probably not substantial.  There is certainly a legal gray area between three years and ten years, and attention must be given to the precedents within the U.S. District or Circuit where the case arises.

John O’Connor: I see some ads or have been told about some ads that I would call very questionable and they aren’t all on Craig’s List.

Joe Austin: The ADEA prohibits an employer from publishing advertisements relating to employment that indicate any preference or limitation based on age.  EEOC regulations therefore prohibit ads for applicants “age 25 to 35” or for “young people.”  Exceptions will be made where age is a bona fide occupational qualification (BFOQ) for the position.

John O’Connor: Give us a little bit more history and perspective from your point of view regarding the ADEA and perhaps some cautions for all who may be involved in these issues.

Joe Austin: The ADEA has been on the books now for 44 years. It has been publicly litigated, and it has been discussed extensively in the media.  The heedful business owner, manager, and supervisor will thus take precautions particularly in the hiring process.  Employment applications and interview protocols are typically scrubbed clean of any questions which would elicit information about an applicant’s age.  How old are you?  What is your date of birth?  What year did you graduate from high school?  These and similar questions are generally avoided in the process of selecting new employees.  The data would not assist the employer to select the best candidate on the basis of performance-based criteria.  Furthermore, once the employer has acquired such information, the selection process could be tainted.  The unsuccessful applicant who is over 40 may use it as a bootstrap for a charge of age discrimination. On the other hand, the EEOC does not consider the request for such information a per se violation of the ADEA.  There are conceivably good reasons for requesting a person’s age or date of birth on an application, but the EEOC will closely scrutinize it to make sure that the request is for a legal purpose.

John O’Connor: Joe, where does “retaliation” come into play?

Joe Austin: The ADEA also prohibits retaliation against an employee who has opposed a practice that is made unlawful by the ADEA or who has made a charge of discrimination or who has assisted a co-worker in an investigation, proceeding, or litigation under the ADEA.  Illegal retaliation, or employer “payback,” could include extreme job action such as termination, demotion, or pay reduction, or less overt behavior, such as an onerous shift change, relocation of an office, decrease in administrative support or benefits, a bad evaluation, exclusion from meetings, a bad job reference, or changed job assignments.  The test is whether the employer’s retaliatory act would chill a reasonable employee’s resolve to complain about, or assist in complaints against, discrimination or harassment in the workplace.

John O’Connor: Is there any age limit on these issues?

Joe Austin: There is no top end, generally speaking, to protection against age discrimination.  Under the strict letter of the ADEA the 80-year old has the same protection against age discrimination as the 40-year old.  As the population in general ages and the economy further degrades our 401(k)’s, the phenomenon of the “working aged” steadily increases.

John O’Connor: Thank you Joe. Any last words?

Joe Austin: The good news is that there is no such thing as reverse age discrimination, so older workers may be favored over younger workers, whether the younger person is under 40 or forty-plus.  Although a 40 year old person is within the protected class, it would not be illegal for the employer to favor someone even older.  That point is often made by commentators but likely gives cold comfort to those who could be labeled “working aged.”

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