If Age Is Really Just a Number, Why Does It Require Federal Protection? | DCR Workforce Blog

If Age Is Really Just a Number, Why Does It Require Federal Protection?

As rightly said by James Madison, “Persons and property are the two great subjects on which Governments are to act” and it’s for these inseparable rights that Government was instituted. Which is why the federal Age Discrimination in Employment Act (ADEA) prohibits age discrimination against individuals who are 40 or older.

Among other things, the Act is supposed to help resolve issues with age discrimination in the workplace when someone who is 40+ is discriminated against in favor of someone who is less than 40; or when both are over 40, but the younger among the two is given preference in hiring.

Such attention to discrimination within the subgroups puts both individuals under the protected class made the determination of age discrimination very difficult to decide until 1966, when the Supreme Court held in O’Connor v. Consolidated Coin Caterers Corp., in favor of classing a preference for a younger person over an older one in the same age sub-group as age discrimination. But the confusion continues unabated as many courts at the state level still refuse to consider any discrimination practiced against anyone within the subgroup of workers protected by the ADEA.

Some employers still believe that the ADEA does not prohibit company policies which create a disparate impact against anyone older than 50, but not 40-plus. But employers are not expected to discriminate against 50-plus people while being very compliant with the ADEA by not discriminating against those who are 40-plus.

In this matter, earlier rulings in age discrimination lawsuits held that allowing employees to delve deep into evidence to prove such discrimination could result in creative statistical efforts, which have no basis in fact. Such policy reasons are not considered significant anymore.

In the lawsuit filed against Pittsburgh Glass Works, for disproportionately choosing to let go of employees aged more than 50 when laying off 100 workers, this matter has now been clearly decided by the Third Circuit appeals court on January 10, 2017. This ruling confirms the need for employers to stay clear of dividing the protected class of people over the age of 40 into any subgroups between which they create a disparate impact through their policies and actions.

Why does age require protections?

As life expectancy improves and savings dwindle, traditional retirement age has lost its meaning, even as older workers find that they cannot afford to retire from the workforce.

But many times they run into hurdles because of various barriers set against their entry into the workforce. This is where the ADEA comes in – to protect workers from discrimination in hiring, firing, demoting, denying promotion, compensation and other terms, privileges and conditions of employment.

This was deemed necessary because of the challenges faced by older workers in seeking employment including:

  • Age-based stereotypes and unfair assumptions that questions their abilities and denies them a fair opportunity
  • Professional longevity which puts them at a higher pay grade when compared to younger, less experienced candidates when applying for the same role
  • Getting by-passed in a promotion opportunity, in the name of getting in new blood
  • Being the first to be let go when lay-offs occur, as often older people draw higher salaries due to more experience
  • The assumption that they may require more accommodations and be less flexible than younger workers
  • Getting marginalized and excluded from many opportunities because they’re thought of as “retiring soon”

Should Pittsburgh Glass Works appeal to the Supreme Court to contest the ruling, it can only be hoped that the spirit of this federal statute will not be diluted and the protections it affords to older workers will continue to be in force.

Have you ever been in a position where you’ve been discriminated against due to your age? What was the result?

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.