Age discrimination is prohibited by federal civil rights laws. The Age Discrimination Act of 1975 requires nondiscrimination on the basis of any age in the delivery of federally-assisted services, aid, training, and benefits. And, the Age Discrimination in Employment Act of 1967 bars discrimination against individuals who are 40 years and older in our employment practices.
In this paper, we’ll cover the requirements of these laws, and set forth some specific steps you can take to ensure compliance.
√ In federally-assisted programs and activities
In federally-assisted programs and activities, age discrimination is prohibited regardless of the age at issue. Federally-assisted programs and activities cover a wide variety of areas including, but not limited to, job counseling, job referral, unemployment insurance, on-the-job-training, and other programs and activities offered through the American Job Center network and Job Corps Centers.
Denying services, aid, training, or benefits in federally-assisted programs and activities because someone is “too old” or “too young” runs afoul of the Age Discrimination Act. 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 enrollment for its federally-assisted educational programs and activities to persons who are 16 to 24 years old. 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 partially funded with grant money received from the U.S. Department of Labor. Through this program, participants obtain specialized certification allowing them to bid on a wider variety of contracts issued in your locality.
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 under the Age Discrimination Act.
Now, when conducting an investigation of this complaint, you’ll want to learn whether Joan met the “essential eligibility requirements” for the training program as well as who was selected and who was not, the bases of these decisions, and so on.
If you operate a federally-assisted program or activity to deliver aid, training, services, or benefits to the public, then focus on the following measures to ensure compliance with the Age Discrimination Act:
● Know the “essential eligibility requirements” for the program. Are there any age requirements? If not, then the Age Discrimination Act mandates age cannot be used to deny access to a program, or to offer lesser, segregated, or different services.
● Make sure each member of your staff operating a federally-assisted program, including your front line folks who greet the public as they come through the door, treats each person with respect, and does not segregate, exclude, limit, or deny access to a program or activity because of an individual’s age.
● Conduct training so that staff understands the Age Discrimination Act, i.e. what it is, where it applies, and what it means. Everyone needs to be on the same page—you cannot offer lesser 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 delivery of federally-assisted programs and activities, in the workplace, we are concerned with the treatment of people who are 40 years of age and over. The Age Discrimination in Employment Act (ADEA) stemmed from Congress’s concerns over stereotyping of older workers as being less efficient or less productive than their younger counterparts. Congress found, based on these stereotypes, older workers were treated less favorably.
The EEOC reported that 23 percent of all discrimination charges it received in 2012 included alleged violations of the ADEA, and the “most startling” component of these age-based discrimination complaints was that 64 percent of the complaints asserted discriminatory discharge of the worker. As a result, in 2012, the EEOC announced a new strategic enforcement plan targeting age-based discrimination in the employment context, which was approved by the Commission. One of its goals under this new strategy is to prevent age-based discrimination and harassment through increased litigation and targeted outreach.
At this juncture, it is worthwhile to take a brief sidestep and note that a variety of studies have come out in recent years demonstrating 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, issuing adverse performance appraisals, creating a hostile work environment, forced retirement, 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. Notably, in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009), the United States Supreme Court considered the complainant’s burden under the ADEA. The plain language of the statute provides it “shall be unlawful for an employer . . . [t]o discriminate against any individual . . . because of such individual’s age.” Citing this language, the Supreme Court held an employee must show, even if age is not the only cause for the adverse action, age must be the controlling factor in the adverse employment action; that is, the adverse employment action would not have happened “but-for” the employee’s age.
One example of application of the “but for” standard is found in Cobb v. City of Roswell, Georgia, issued by the Eleventh Circuit in August 2013. The court noted, in order to meet this burden, the employee initially must demonstrate a prima facie case that s/he was: (1) at least 40 years old; (2) subjected to an adverse employment action; (3) replaced by a younger person; and (4) qualified for the job at issue. The court stated an employer’s expressed need for “fresh” leadership, standing alone, will not carry the day in establishing age discrimination; rather, there must be a basis in the record to demonstrate that “fresh” meant “young” or “younger.” If a prima facie case is made, then the burden shifts to the employer to present legitimate, nondiscriminatory reasons for its conduct. And, finally, the employee is afforded the opportunity to demonstrate that the employer’s proffered reasons are mere pretext, or are not true. Here, the Cobb court held the employee “must meet each proffered reason head on and rebut it, and he cannot succeed by simply disputing the wisdom of the employer’s proffered reasons.”
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, 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.
Harassment and creating a hostile work environment based on age constitutes prohibited discrimination under the ADEA. For purposes of illustration, we’ll use two court opinions to help us better understand the concept of age-based hostile work environment—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 most often 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 an age-based 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.
So, where the Vasbinder court concluded a stray age-related remark did not rise to the level of hostile work environment, the Saffros court found a culture of the company’s leadership making derogatory age-based remarks was sufficient to create a hostile work environment in violation of the ADEA.
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. The employer argued that the plan 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:
● 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.
√ About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at email@example.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.
By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.
With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.
She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.