According to the Age Discrimination in Employment Act (ADEA), it is prohibited to discriminate against employees or job applicants that are 40 or over (U.S. Equal Employment Opportunity Commission, n.d.). This means that it is against the law to treat individuals that are younger than 40 more favorable than those that are 40 and up in regard to pay raises, pay rates, training, benefits, hiring, and firing (Office of Civil Rights, n.d.). Discrimination can show up in the form of harassment, retaliation, or employment decisions based on age or stereotypes about age (U.S. Equal Employment Opportunity Commission, n.d.).
When Age Discrimination is Acceptable
Age discrimination is acceptable in the workplace when the employee is under 40, as the Age Discrimination in Employment Act (ADEA) does not apply to employees and applicants under 40.
Example: 22-Year-Old Applicant vs. Equivalent 38-Year-Old Applicant
There is a job opening for a position as entry-level tech support at Fictional Corporation. Two men applied. Neither had any experience, though both had attended trade school for network administration. Both applicants had great personalities and communicated well. Other than age, both applicants looked ideal.
Fictional Corporation chose the 22-year-old applicant over the 38 year old applicant because they believe that the 22-year-old will have a longer career with the company, giving them potentially over 45 years to mold, train, mentor, and grow the candidate up through the tiers of the company over his time with the Fictional Corp. For this reason, they saw a higher potential in the 22-year-old, and that higher potential was worth investing in.
The 38-year-old has less than 29 years until typical retirement age, which gives him a shorter potential run than the 22-year-old. All other things equal (experience, education, soft skills), the 22-year-old is a better investment for Fictional Corporation. Since both candidates are under 40 years old, the Age Discrimination in Employment Act (ADEA) does not apply to them. This means that age discrimination can exist in the decision to hire the 22-year-old instead of the 38-year-old, and that discrimination is not illegal.
Example: Pilots Have a Mandatory Retirement Age of 65
Fictional Airlines has a pilot named with 30 years of commercial airlines experience that has just turned 65. The pilot feels fit, continually trains, and passes all physicals and flight tests with high marks, so he would like to continue flying. Fictional Airlines, per the Fair Treatment for Experienced Pilots Act of 2007, forces the pilot to retire. Even though the pilot appears fit as a fiddle, he has reached an age when physical and psychological changes associated with aging put the passengers of the planes he flies at an elevated risk. It is acceptable to force him to retire even though he wants to keep flying.
The NIH National Institute on Aging discusses the diminishing eyesight, slowing reflexes and reaction time, hearing difficulty, and other issues related to aging (such as arthritis) that can affect operating vehicles (NIH National Institute on Aging, n.d.). In some situations, like piloting expensive commercial airliners with hundreds of people on board in an airspace with thousands of other passengers, it is wise to be cautious about the risks relating to aging, such as diminishing eyesight and slower reaction times, which could put a lot of lives at risk.
The U.S. Supreme Court recognized this risk in Western Air Lines, Inc v Criswell in 1985 when they ruled that the it was lawful to require the retirement of pilots at the age of 60 years old usually have issues of “physiological, psychological or other nature which preclude safe and efficient job performance,” putting their passengers’ safety in danger (Western Air Lines, Inc v Criswell, 1985). In 2007, that age was moved back to 65 with the Fair Treatment for Experienced Pilots Act (H.R.4343 – Fair Treatment for Experienced Pilots Act, 2007).
When Age Discrimination is Unacceptable
Age discrimination is unacceptable in the workplace when the person is age 40 or over and they are treated less favorably because of their age (U.S. Equal Employment Opportunity Commission, n.d.). Harassment, such as referring to their AARP membership or their senility, is unacceptable. Also unacceptable is assuming that they are incapable of certain kinds of work or learning because of their age and blocking their ability to grow in their career or gain training or experience because they are no longer young. Taking them out of physical positions or limiting their activity due to their age is discrimination if they can do the work.
Example: Choosing the Young
Fictional Corporation is looking for a new VP of Sales and has two candidates. The first candidate is a 33-year-old salesman who has been with the company for 10 years at Fictional Corporation. The second candidate is a 62-year-old applicant with a 40-year track record of leading sales teams at three different Fortune 500 companies. He is currently the VP of Business Development at another firm and wants to come aboard and lead Fictional Corporation’s sales team with the hope of becoming the Chief Revenue Officer at Fictional Corp. Fictional Corporation, chooses the 33-year-old salesman rather than the 62-year-old applicant because the 33-year-old has a long career ahead of him and Fictional Corporation assumes that the 62-year old applicant will soon want to retire, so he is not worth investing in. The 62-year old candidate sues Fictional Corporation for violating his rights per the Age Discrimination in Employment Act of 1967 and fights for the position he applied for. He intends to work well into his 70s and is not ready to retire.
Fictional Corporation, in this case, is discriminating on the basis of age against the 62-year-old candidate who is more qualified and experienced than the younger salesman. Per the Age Discrimination in Employment Act, the 62-year old applicant is a protected class, so this discrimination is illegal. If the 62-year old was a weaker candidate in terms of experience, education, or any other qualifier for the job, it would be okay to choose the other candidate. Since the decision was made on the basis of age, it is considered age discrimination and is not acceptable.
In recent years, Google has had several complaints against them for age-based discrimination and ageism, refusing to promote and enable older employees in the workforce and refusing to hire older applicants, despite better experience and skills. Google settled an age discrimination class-action lawsuit for $11 million to 200 job seekers over 40 that applied for positions (Kelly, 2019). Google, like Fictional Corporation, is violating the Age Discrimination in Employment Act and unlawfully discriminates against job applicants over 40.
Example: The Layoff
When there is an economic downturn and larger companies need to perform layoffs, they usually have to make a decision of who they need to keep aboard and who needs to go. Unfortunately, many companies choose to cut the older workers and keep the younger workers. This is sometimes very thinly veiled age discrimination and is illegal.
Verizon is one example of this. People that were laid off from Verizon on TheLayoff.com cited that everyone from their regions that were laid off were between 40 and 80, and they complained to the U.S. Equal Employment Opportunity Commission (EEOC) (Anonymous, 2015). Verizon was sued for age discrimination by a 56-year old engineer that treated unfairly compared to younger employees and then was terminated, despite performing much better than the average in standardized performance tests (Rhodes, 2017).
ProPublica’s investigation shined a light at IBM, who has also been in the news regarding laying off their older workers, firing 20,000 American employees over the age of 40. Over 1,100 former employees gave their stories about age discrimination at IBM as a part of the study (Gosselin, 2018). Later, former IBM Vice President of HR Alan Wild was deposed and it came out that in an attempt to look trendy like younger companies Google and Amazon, IBM fired as many as 100,000 to make room in the company for younger employees (Carville, 2019). This is blatant age discrimination and has opened them up to lawsuits for violation of the Age Discrimination in Employment Act.
A Protected Class
As a result of the Age Discrimination in Employment Act (ADEA) of 1967, individuals age 40 and over in the United States have taken on the characteristics of a protected class at work (Autenrieth, n.d.). This adds age to the list of protected classes including race, color, national origin, sex, religion, and to some extent: disability (Droste, 2020).
Ideal World: How Would the Anti-Ageism Laws Work?
In the ideal world, anti-ageism laws would apply to everyone, regardless of age. Young people entering the workforce would be as protected as people over 40. Young people entering the workforce often carry the stigmas of their generation’s stereotype. Gen-Z are lazy and afraid to make a phone call, for instance. When that stereotype translates into the work environment, it can cause the employee to be treated unfairly.
Older workers still need to be protected more than ever as well. Since retirement plans and pensions are often non-existent in the U.S., and Social Security is not a livable wage nor a reliable source of income in the future, most Americans will have to continue to work until they no longer can work. Americans have an incredible work ethic, so they work to death now. When a company forces an older American out of the workforce, it is a hard pill to swallow given they usually have no other livelihood.
Older employees need to and want to continue working, continue learning, and continue growing their career. With a wealth of experience and skills, they are an asset to companies. Yes, skills can get outdates, so they need to have opportunities to grow just as their younger counterparts do. Forcing them to retire or refusing them employment is unfair and illegal in the United States.
Anonymous. (2015). Openly violating anti-age discrimination laws. Retrieved from https://www.thelayoff.com/t/Ed02kxL
Autenrieth, Natalia. (n.d.). 6 Signs of Ageism in the Workplace — and How to Best Handle It. Retrieved from https://www.topresume.com/career-advice/signs-of-ageism-in-the-workplace
Carville, Olivia. (2019). IBM Fired Up to 100,000 Older Employees to Make Room for Millennials, Lawsuit Alleges. Retrieved from https://fortune.com/2019/07/31/ibm-fired-employees-lawsuit/
Droste, Meghan. (2020). What are “Protected Classes”? Retrieved from https://www.subscriptlaw.com/blog/protected-classes
Gosselin, Peter. (2018). Cutting ‘Old Heads’ at IBM. Retrieved from https://features.propublica.org/ibm/ibm-age-discrimination-american-workers/
H.R.4343 – Fair Treatment for Experienced Pilots Act. (2007). 110th Congress. Retrieved from https://www.congress.gov/bill/110th-congress/house-bill/4343
Kelly, Jack. (2019). Google Settles Age Discrimination Lawsuit, Highlighting The Proliferation Of Ageism In Hiring. Retrieved from https://www.forbes.com/sites/jackkelly/2019/07/23/google-settles-age-discrimination-lawsuit-highlighting-the-proliferation-of-ageism-in-hiring/#3918a4115c67
Lau, T. & Johnson, L. (2011). The Legal and Ethical Environment of Business (Vol. 1). Flat World Knowledge. Retrieved from https://resources.saylor.org/wwwresources/archived/site/textbooks/The%20Legal%20and%20Ethical%20Environment%20of%20Business.pdf
NIH National Institute on Aging. Older Drivers. Retrieved from https://www.nia.nih.gov/health/older-drivers
Office of Civil Rights. (n.d.). Age Discrimination. Retrieved from https://www.commerce.gov/index.php/cr/reports-and-resources/discrimination-quick-facts/age-discrimination
Rhodes, Jeffrey. (2017). Court Awards $619,000 Against Verizon for FMLA Retaliation and Age Discrimination. Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/verizon-fmla.aspx
U.S. Equal Employment Opportunity Commission. (n.d.). Age Discrimination. Retrieved from https://www.eeoc.gov/age-discrimination
Western Air Lines, Inc v Criswell. (1985). United States Supreme Court. USSC 161; 472 U.S. 400; 105 S.Ct. 2743; 86 L.Ed.2d 321; No. 83-1545. Retrieved from http://www.worldlii.org/us/cases/federal/USSC/1985/161.html