ADEA - a brief review

Age discrimination as an important element of employment discrimination usually attracts a lot of attention and is addressed differently worldwide. To better regulate such a common issue, the Age Discrimination in Employment Act (ADEA) was passed in 1967 in the United States. The act was intended to prohibit age based discrimination against employees whose age is at least 40. Thus, discrimination can occur only when employees are over that age.

There are different ways in which discrimination due to age expresses itself (EEOC/laws/practices), and ADEA forbids any such occurrence, in every aspect of employment. Thus, we can distinguish and regulate:

• Age discrimination and work situations
• Age discrimination and harassment of any kind
• Age discrimination and employment policies and practices

ADEA rules over individuals and legal entities such as partnerships, employment agencies and labor organizations. It also covers those corporations that have:

• At least 20 employees and
• Engage in industries affecting interstate commerce

The act does not regulate state and local governments. In the case of employment agencies, their referrals made to a covered employer would fall within the scope of ADEA as well. ADEA protects against discrimination at such levels of employment as hiring, firing, pay, assignments, etc...

Procedural requirements for an ADEA suit are very complex.  For our immediate purposes we will only cover the basics. To be able to sue an employer, a private plaintiff first needs to file a charge with the EEOC (Equal Employment Opportunity Commission), or other applicable agency. The EEOC itself may enforce the ADEA, and such suits are intended to prevent numerous private suits stemming from the same violation. (Mallor et all., 2008, p. 1268). As with most legal matters, there is a statute of limitations which is 3 years counted from the alleged willful wrongdoing, and 2 years in case of alleged non-willful wrongdoing.

Proof: For a legal action to be taken, the plaintiff needs to provide proof that age discrimination has occurred. Such proofs could be easily demonstrated in a situation where the employer has express age criterion. The plaintiff may need to provide testimonies to better support his or her claim. Further, ADEA permits plaintiffs to prove discrimination through the disparate impact theory discussed in the June's issue of PACWorld.

Defenses: Employers may defend their actions if they can prove that the discharge was based on reasonable factors, and the employee was disciplined for good cause. As with Title VII, ADEA allows employers to follow the bona fide seniority system, and the bona fide occupational qualifications (BFOQ) described in previous issues. To use such defenses the employer needs to show good reasons for their age requirements, which usually comes down to safety performance at work. An employer is allowed to discriminate against age if he or she  can reasonably claim that older employees would pose significant safety risks while performing their daily tasks.

Remedies: After a successful ADEA suit, a plaintiff may recover unpaid back wages, attorney fees, etc... An award of liquidated damages in case of willful violation can be subsequently sought as well.

The law makes it clear that it is illegal to retaliate against a person who complained, filed a charge, or participated in an employment discrimination investigation or lawsuit. ADEA is a powerful protection tool for employees, however it has the potential of leading to paranoia in the minds of employers of excessive lawsuits and claims, thus causing them to hire less, and in turn raising unemployment. 

In mitigation, to limit employers' vulnerability, ADEA makes it difficult for a plaintiff to recover punitive damages for suffering and mental distress.  

Biography

Yana is an American attorney, licensed to practice in the State of California.  She received her B.A. from UCLA in

2001 with a major in Political Science, specializing in International Relations.  In 2005 she was awarded the degree of Juris Doctor, from Loyola Law School. 

In 2009 she received her MBA from Ashford University.

During her studies, Yana worked for Soft Power Int., where she became well acquainted with the engineering world.  Upon graduating from Law School, Yana joined the Criminal Defense field, where she has devoted her talents to fight for her clients.