Tools

Walking past his boss's office at the end of a long day, John Q., a 58-year-old employee for a mid-size public relations company, could not help but overhear a portion of a telephone conversation in which his boss, 25 years younger than John, was explaining that the company needed to "shake things up" in light of falling revenues. "We need some new blood, people who are on the cutting edge of things and can project a fresh look and ideas around here," his boss was telling someone at the other end of the line.

On his drive home, John became concerned. He had devoted years of effort to the company to build a life for himself and his family, but lately he had sensed that many of his newer co-workers felt that he was over-the-hill in an industry that demanded up-to-the-minute technology skills he admittedly lacked. For several years, he had asked the company to allow him to attend technology training classes available to employees, but his repeated requests had always been turned down by his boss. Never mind that his experience and judgment were often sought out by these same employees when they encountered some type of problem for the first time, and never mind that he had always received good evaluations for the work he had performed over the years.

"How would we make it if something happened to my job," he worried. "Without health insurance and money for the kids' college, I just don't know what I would do at this point in my life."

The next morning, John was told that the company was cutting its staff to reduce costs, and he was let go. Although he immediately began calling on friends to inquire about job openings and scoured the help-wanted pages of his newspaper, he was unable to find a job which even closely matched the pay and benefits he had been receiving.

Protection Against Ageism

The Age Discrimination in Employment Act of 1967 (ADEA), as amended, makes it unlawful for an employer "to fail or refuse or hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age."

The act prohibits discrimination against employees and job applicants who are 40 years of age and older and applies generally to employers who have a work force of 20 or more employees, to labor organizations, to employment agencies, and, in some respects, to state and local governments and certain federal employees.

The purpose of the ADEA is to address the longstanding problem of age discrimination in the workplace, and it is broadly drafted to apply to all terms and conditions of employment, including matters like hiring, promotion, termination, discipline, salary, leave and other benefits. In addition to the ADEA, there are also similar state laws as well as other federal laws which afford protection to individuals who believe that they have been illegally treated.

A person in John's shoes who feels that he or she may have been the subject of illegal discrimination is required to contact the local Equal Employment Opportunity Commission office within a specific time period (usually 180 days in Arkansas for private sector employees) in order to protect their rights under the ADEA. The EEOC, a federal agency charged by law with enforcement of the nation's discrimination laws, will require a claimant to complete several different forms detailing the circumstances under which it is believed that they have been the victim of or otherwise experienced discrimination in the workplace. Failure to timely contact the EEOC and complete its paperwork will almost assuredly doom the ability of an individual to seek redress under the ADEA for illegal action taken against them.

Once the EEOC's paperwork is completed by the individual claiming to be aggrieved and a charge of discrimination has been filed against the employer, the EEOC will investigate the merits of the charge and will either take further action itself on behalf of the individual or will allow the individual to assert his or her own claims through private legal channels. Remedies available to individuals in the event they can establish that they have been discriminated against can include court ordered reinstatement to the job, payment of all lost wages and benefits and other special kinds of damages which are dependent on the specific facts of the matter.

In the case of an employee who has not been terminated and continues to work, but who feels that discrimination has occurred in regard to some other aspect of employment, like a failure to be promoted, the employer is prohibited by law from retaliating against that employee who in good faith has complained of illegal treatment. Retaliation, in and of itself, gives an employee the right to seek relief against the employer even where it subsequently turns out that the employee was not otherwise the subject of discrimination.

Pitfalls for Employers

While enough emphasis cannot be placed upon the fact that not every action which adversely affects employees is discriminatory or illegal and that employers are and should remain free to make permissible employment decisions as they see fit, taking certain precautionary measures can go a long way in eliminating claims of questionable merit that can nonetheless be costly to defend. For example, with regard to the subject of retaliation which is mentioned in the preceding paragraph, a wise employer will remember the following maxim: "Don't turn a bad discrimination claim against you into a good retaliation claim."

Additionally, although there is no per se prohibition against an employment application which requests information concerning an applicant's age, employers should be wary of doing so because a request for "your age" or "your date of birth" or a similar kind of inquiry will almost certainly result in the EEOC closely scrutinizing the application and hiring process to assure that the request is for a permissible purpose. Similarly, employers should avoid advertising for jobs by using phrases like "college student wanted" or "recent college graduate" or even "supplement your pension" since such advertisements likely will be deemed to contain age preference requirements by the EEOC.

Employers can always make employment decisions which are based on reasonable factors other than age. Job performance and economic considerations are legitimate factors to consider when making an employment decision, and generally speaking, even if an employment decision is based on some factor which is highly correlated with age but is not age itself, that decision should withstand scrutiny. In this regard, it is important to keep in mind that where a claim is asserted against an employer for something which arguably may be closely correlated with age (for example, terminating higher-salaried employees for economic considerations when the higher salaries correlate with years of service and, therefore, age), the burden of proof ultimately may be on the employer defending the claim to actually establish that the reasonable factor for the decision was not age.

In the fictional situation used at the beginning of this article, John's boss arguably did not say anything which was illegal or which evidenced an illegal motive on his part. Phrases like "new blood" and "fresh faces" do not, in and of themselves, display a discriminatory animus toward older workers. However, the existence of such an animus may be gleaned by a judge or jury when viewed in the totality of all the circumstances affecting an employee. It is critical, therefore, that employees understand that nothing they say or do will necessarily be considered in a vacuum when their intent or motive is subsequently put into question.

The ADEA permits employers to recognize and comply with provisions contained in a bona fide seniority system and/or employee benefit plan, so long as they do not require mandatory retirement because of age. Age-based mandatory retirement requirements are facially illegal unless the age-related provision is one which qualifies as a "bona fide occupational qualification (BFOQ) which is reasonably necessary to the normal operation of a particular business" or unless it applies to a bona fide executive or high policymaker who has reached the age of 65 and is entitled to a pension benefit of at least $44,000.

By statute, government entities may establish mandatory retirement requirements for firefighters, law enforcement officers, air traffic controllers, and border patrol and customs officers; but even if a job is not expressly exempted by statute, an employer can justify an age-based employment requirement by demonstrating that the requirement is reasonably necessary to the essence of its business and that an individualized approach would be pointless. Although employers have attempted to apply the BFOQ argument in a variety of employment settings, courts historically have upheld age-based requirements most often when the positions in question affect public safety – occupations like airline pilots.

There are some limited technical exceptions to the age-based prohibitions contained in the act with regard to certain kinds of benefits like pension/retirement benefits and health insurance benefits. The law does allow employers the option of paying the same amount for benefits of the age-protected class that it pays for employees outside the age protected class – even if by doing so the over 40 age employees receive less benefits.

And, in response to at least one federal court opinion holding that an employer violated the ADEA when it attempted to cut costs by providing higher levels of benefits to non-Medicare eligible retirees and then reducing those benefits when the retirees attained the age of 65, the EEOC has taken the position that it is not a violation of the act to reduce or even eliminate health benefits for retirees who become eligible for Medicare and/or other state health benefits. The issue is unsettled whether the same rational would also apply to employees.

Looking to the Future

In the last decade, the share of the overall American labor force represented by individuals in the 45-64 age group has continued to increase, and the role of the ADEA in maintaining and encouraging employment of older workers will continue to expand in the coming years. Spurred on, in part, by events totally out of their control like the recent downturns in the economy with resultant losses of 401(k) retirement benefits and spiraling health care costs, many workers in this age group will need to remain active in the workplace well past what has been viewed in many quarters as the traditional retirement age of 65 – a view likely obsolete now due in no small part to the continuing changes in Social Security laws.

With that in mind, it seems likely that the emphasis on continued employment will shift from the perspective of what it has been – long-term careers – to part-time or shorter-term employment, often referred to as "partial retirement," and often with new employers. If that is true, then it is equally likely that the enforcement emphasis of the EEOC will inevitably shift from "termination" age cases to "hiring" age cases.

While termination cases have historically held the forefront in age-related enforcement actions brought by individuals and by the EEOC itself, ensuring that age discrimination does not preclude the hiring of older individuals who leave their full-time jobs and seek to remain in the labor market, possibly in some reduced capacity, will become more critical to the act's intent and purpose as time goes by and current trends become the norm.

(Dougherty is a private-practice Little Rock attorney, concentrating in commercial litigation and employment law. He can be reached at bill_2008@comcast.net.)