Age discrimination is prohibited by federal civil rights laws. The Age Discrimination Act of 1975 (ADA) requires nondiscrimination on the basis of any age in the delivery of federally-funded services, aid, training, and benefits. And, the Age Discrimination in Employment Act of 1967 (ADEA) bars discrimination against folks who are 40 years and older in employment practices.

√ In federally-funded programs and activities.

In federally-funded programs and activities, age discrimination is prohibited regardless of the age at issue. Denying services, aid, training, or benefits because someone is “too old” or “too young” runs afoul of the ADA. That is, if you limit services, provide lesser services, provide segregated services, or deny services based on a person’s age, then you have engaged in age-based discrimination.

The only exception is when the federal funding agency designates dollars for a program geared to a particular age group. For example, Job Corps offers federally-funded educational programs and activities to persons who are aged 18 to 25 years. Here, one of the essential eligibility requirements for participation in this federal program is age-related.

Absent specific age criteria set by the federal agency, as in our Job Corps example, age-based discrimination is prohibited in government programs. For example, let’s say you are operating a project management training program, which is funded by dollars from the U.S. Department of Transportation. Through this program, participants obtain specialized certification allowing them to bid on a wider variety of contracts issued by your agency.

Joan, a 36-year old, was denied entry into the program. She files a discrimination complaint alleging you only selected folks under 30 years of age. This constitutes an age-based discrimination complaint.

Now, when conducting an investigation of this complaint, you’ll want to learn whether Joan met the essential eligibility requirements for the training program, who was selected and who was not, what were the bases of these decisions, and the like.

If you operate a government program to deliver aid, training, services, or benefits to the public, then focus on the following measures to ensure compliance:

● Know the “essential eligibility requirements” for the program. Are there any age requirements? If not, then the ADA applies and age cannot be used to deny access to the program.
● Make sure each and every member of your staff working with this program, including your front line folks who greet the public as they come through the door, knows the eligibility requirements for your program.
● Conduct training so that staff understands the ADA, i.e. what it is, where it applies, and what it means. Everyone needs to be on the same page—you cannot offer less services, segregated services, different services, or no services because someone is “too old” or “too young.”
● Monitor the program. Check census and other demographic data for your service population to make sure you are reaching your target populations, regardless of their ages. Check program data for any disconnects between the ages of folks who come through your doors and those who are actually served. And, finally, track your discrimination complaint log to pinpoint and troubleshoot problem areas in your systems of delivering aid, training, benefits, or services to the public.

√ In the workplace.

Unlike the operations of government programs, in the workplace, we are concerned with the treatment of people who are 40 years and over. The ADEA stemmed from Congress’s concerns over stereotyping of older workers as being less efficient or less productive than their younger counterparts. Congress found that, based on these stereotypes, older workers were treated less favorably.

At this juncture, it is worthwhile to take a brief sidestep and note that a variety of studies that have come out in recent years demonstrate that older persons exhibit sharper minds in some areas and have more stable emotions than their younger counterparts. For example, older air traffic controllers were studied by University of Illinois researchers and found to exhibit expert navigation abilities as well as expert abilities coordinating multiple aircraft at the same time to avoid collisions. So, it is important to instill a workplace culture that does not negatively stereotype older workers.

Less favorable treatment in employment practices includes non-selection, non-promotion, adverse performance appraisal, hostile work environment, and termination. It can also include transfer to a less favorable position or office location, exclusion from meetings, and other less favorable privileges, terms, or conditions of employment.

If it is determined that less favorable employment policies and practices adversely affect folks 40 years of age and over, then prohibited age-based discrimination is demonstrated, unless the employer demonstrates that “reasonable factors other than age” are at the core of the less favorable employment policy or practice.

Keep in mind, it is not illegal under the ADEA to favor an older worker over a younger worker, even if both employees are over 40 years of age. Rather, as stated earlier, the ADEA was enacted to protect older workers against discrimination in favor of younger workers.

The ADEA applies to your workplace as well as to apprenticeship programs, job notices and advertisements, and pre-employment inquiries. While there is no specific prohibition to asking the age, the date of birth, or the date of high school graduation of an applicant for employment with your organization, such pre-employment questions will be closely scrutinized in any discrimination complaint investigation to determine whether the information was obtained for a lawful purpose.

There is no upper age limit under the ADEA, which means that employers must be careful when imposing mandatory retirement policies. Specifically, if an employer seeks to impose mandatory age retirement, it must demonstrate that such a requirement constitutes a bona fide occupational requirement for the position.

And, sometimes, job requirements will have a disproportionately adverse impact on folks who are 40 years of age and over. For example, a job may require consistent lifting of 50 pounds during the workday and this, in turn, may disproportionately affect some older workers. Such job requirements are permissible so long as they relate to the essential functions of the job.

So, we’ll use two court opinions to help us better understand age-based discrimination in the workplace—when it is established and when it is not. Keep in mind, that discrimination complaints are very fact intensive. There are very few bright line rules and these complaints are resolved on a case-by-case basis.

The two cases that we are going to look at are the 2011 New Jersey Supreme Court opinion, Saffros v. Anaya, Inc., where age discrimination was established, and the 2012 Third Circuit opinion of Vashinder v. Sec’y. Dep’t. of Veterans Affairs, where age discrimination was not established.

The plaintiffs in each of these cases alleged that derogatory age-related remarks were directed at them in the workplace. The Vashinder court found evidence of one “stray remark” about the plaintiff’s age, but concluded that this did not rise to a “severe and pervasive” level so as to create a hostile work environment.

In Saffros, on the other hand, the court found evidence that company managers and supervisors continually made degrading age-related comments directed at, or about, older workers, including the plaintiff. Indeed, the court found that these comments were “severe and pervasive” enough to create a hostile work environment based on age, which constituted age-based discrimination.

Next, in Vasbinder, the plaintiff, who was over 40 years of age, was demoted from Boiler Plant Operator Leader to Maintenance Worker. Although the plaintiff asserted that the demotion stemmed from the fact that he was over 40 years of age, the court found sufficient evidence presented by the employer to demonstrate that he was demoted because he was caught sleeping during his shift. Here, the court noted, “Sleeping while responsible for the boiler plant was a serious offense because of the potential consequences of an equipment malfunction.” Although the plaintiff challenged the employer’s investigation of a report that he was sleeping on duty, the court held that the employer followed its procedures, investigated the report, and took disciplinary action.

On the other hand, in Saffros, the court cited to multiple factors demonstrating age-based discrimination had occurred against employees aged 40 years and older. The court cited to one employee over 40 years of age, who had a history of exceptional work performance, but was terminated under a Forced Management Plan, which employer asserted served a purpose of eliminating positions “to create cost savings.” The plaintiff requested a transfer to another geographical location with the company, but this was denied on the basis that there was “no money for moving.” It was problematic to the court, however, when the company turned around and hired a 33 year old to fill the same position as was held by the terminated plaintiff and the moving costs for the new hire were paid by the company. Based on the facts before it, the court concluded that age-based discrimination was established.

In the end, it is important to ensure that your employment practices comply with the ADEA. Some suggestions include:

● In your employment practices, focus on the bona fide occupational requirements and essential duties of a job, not the age of the applicant or employee.
● Avoid gathering age-related information, such as date of birth, date of graduation from high school, and the like, during the pre-employment phase of the hiring process.
● Do not include age preferences in job notices and advertisements.
● While stray age-related remarks in the workplace may not rise to the level of “severe and pervasive” conduct to create a hostile work environment, any such remarks should be discouraged. And, managers and supervisors must refrain from making such remarks, encouraging others to make them, or ignoring complaints by subordinates regarding such remarks. There is a point at which stray remarks evolve into more intense conduct that violates federal civil rights laws.
● Reductions in force and other “cost saving” measures implemented by an employer should not have a disproportionate affect on older workers. It will be particularly problematic for your organization if terminated older workers are replaced with younger ones.
● Monitor what is happening on the ground. Keep your eyes and ears open. Acts of discrimination may start small, but they can quickly build and create a drain on company resources to correct. It is best to encourage a respectful work environment, top to bottom, from the start.

Seena Foster is an attorney, certified mediator, trainer, consultant, and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” Ms. Foster is a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.