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Youth over wisdom: Age discrimination in 2017

In many ways, ageism still runs rampant in Western society. This is no surprise, given our cultural obsession with youth and desire to "fight" the effects of aging. And unfortunately, the workplace is no exception, as experienced workers are often discarded and replaced by younger employees as a cost-saving measure.

Age discrimination, in fact, is one of the few biases that continue to be ingrained in the employment practices of many companies. Often, this is because age discrimination cases are difficult to prove, as a New York Times piece explored in-depth recently.

The Federal Age discrimination law has been weakened

Discrimination on the basis of age in the workplace is illegal in the state of California under the California Fair Employment and Housing Act (FEHA) and under the Federal Age Discrimination in Employment Act (ADEA). The FEHA offers stronger protections than the ADEA for employees.

The ADEA, established in 1967, protects people age 40 and older from discriminatory practices in hiring, promotion and retention in companies with 20 or more employees. The law is 50 years old and has been weakened by recent significant cases decided in the federal courts. For example, a 2009 Supreme Court ruling established that to win, a plaintiff needed to prove that age discrimination was the prime motivator for the demotion or termination of employment. Another Supreme Court decision from June of this year introduced further barriers, stating that the ADEA only protects existing employees, not job applicants.

Enforcement and legislative action needed

Age discrimination cases accounted for nearly a quarter (about 21,000 complaints) of all filings with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2016, yet they only produced 2 percent of the total favorable plaintiff outcomes. From this data, it is clear that actions need to be taken to strengthen the ADEA. 

One immediate solution is for the EEOC to more aggressively enforce the ADEA. The EEOC also could establish "safe harbor" hiring, which would encourage employers to take a chance on hiring older workers for a trial period without ADEA penalties.

Congress also could take action to re-strengthen the ADEA, including:

  • Passing the Protecting Older Workers Against Discrimination Act to restore previous ADEA standards
  • Allow plaintiffs to file dual "sex-plus-age" discrimination claims, allowing for more than one motivator for discrimination
  • Broaden the ADEA to include all companies, not just ones with 20 or more employees

Time will tell whether such initiatives will pass in the current political climate.

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