50 Years after ADEA, Age Discrimination Remains a Problem
The Age Discrimination in Employment Act (ADEA) is 50 years old. Yet, the protections it put in place for older employees are not necessarily followed in the workplace, even at federal agencies.
The ADEA was designed to protect people age 40 and older from employment discrimination based on age. Federal, state and private employers cannot fire, refuse to hire or treat employees differently because of how old they are. Similarly, the ADEA protects older employees from discrimination with regard to compensation or other terms and conditions of employment. Courts have found that, among others, the following practices can violate the ADEA:
- Posting of job ads or recruiting material mentioning age or stating that a certain age is preferred
- Setting age limits for training programs;
- Basing hiring decisions, pay, promotions or layoffs on age;
- Retaliating against employees who file age discrimination claims or who participate in any protected process involving the ADEA; and
- Forcing employees to retire at a certain age.
Despite these protections, employees age 40 and older across all sectors – federal, state and private – still feel that age discrimination is happening to them. For the 2016 fiscal year, the Equal Employment Opportunity Commission (EEOC) reported 20,857 age discrimination claims were filed, ranking sixth among all categories of discrimination and retaliation the Commission handled. The number of age discrimination claims has hovered between 20,000 and 21,000 for the past four (4) fiscal years.
A round of voluntary early retirement offers by federal agencies only adds to the perception that age discrimination is real, since these offers are going to the employees with the most seniority – often, the oldest employees. However, those who voluntarily take early retirement often waive their rights to file an age discrimination claim. So, it becomes a Catch 22 for older employees.
Those federal employees who feel they have been discriminated against because of their age may wish to consider filing an informal complaint with their agency’s EEO counselor. An aggrieved party may do this pro se (i.e. without a lawyer), or they can hire an experienced employment attorney to guide them through the process. While the EEO counselor investigates the claim, there will also normally be an attempt to get both sides to resolve the issue through mediation. The EEO counselor can assign a neutral third party to act as the mediator between the agency and the employee. This process is voluntary and confidential.
If the EEO counselor or the mediator cannot resolve the claim, the employee can file a formal complaint with the Agency, and the Agency is then obligated to conduct, within 180 days, an investigation into the complaint. After the investigation into the complaint, the complainant usually has the choice of going to federal court, or requesting a hearing before an EEOC Administrative Judge.
Federal employees who wish to file an age discrimination claim should contact an experienced labor and employment attorney to help them with the process. An attorney should be consulted at the time the employee feels that he or she has been discriminated against, rather than when the claim is filed. This way, the attorney can assist the employee with documenting the discriminatory act and meeting any filing deadlines.
It’s clear that age discrimination remains an issue, five (5) decades after the ADEA became federal law. Federal employees should report it when it happens to them.