Age Discrimination

Despite all of the uncertainty surrounding COVID-19, it has been apparent since the early days that the virus is dangerous for older adults. As our understanding of the pandemic changes and evolves, this finding does not appear to have wavered, and the CDC currently maintains that individuals 65 years and older “are at higher risk.” As parts of America continue to stay home and others return to work, what does this mean for older adults in the workplace? Federal Protections Under the ADEA At the federal level, the Age Discrimination in Employment Act (“ADEA”) protects Americans age 40 or older[1] from discrimination based on their ages. What that means in the midst of a pandemic disproportionately affecting older people is still unfolding in the legal realm, though COVID-19 age-discrimination lawsuits have already been filed. Employers run into a liability for discrimination when they treat employees differently based on a protected characteristic without their permission. Accordingly, if you ask your employer for dispensation to work from home because you fear that the risk of contracting the coronavirus at your age is too great, your employer will not run afoul of the ADEA for granting this request. But what happens when your employer grants you a […]

This blog was co-authored by Leigh Anne St. Charles and Jonathan Tepe. After nearly two years of highly contested litigation, the Eastern District of Tennessee United States District Court recently granted final approval of a class action settlement resolving Tennessee auto-workers’ age discrimination claims against Volkswagen. Plaintiffs, represented by attorneys in ’s Nashville and New York offices, brought this lawsuit on behalf of older workers to stop Volkswagen from implementing what was alleged to be a systematic corporate initiative to phase out older workers while transitioning to a younger and more technology driven corporate plan in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”) and the Tennessee Human Rights Act, T.C.A. §§ 4-21-101, et seq. (“THRA”). While the Volkswagen workers were able to secure an excellent outcome, one that required the company to make changes to its hiring, promotion, management training, and complaints and investigation procedures, much remains to be done in the fight against age discrimination. The underlying issues raised by the class of Volkswagen employees are unfortunately all too familiar for workers around the nation. This is especially so given the country’s aging workforce.  The EEOC reports that over the last 25 years, the share of the workforce age […]

In cases against private employers under the Age Discrimination of Employment Act (ADEA), employees must establish traditionally “but for” causation. See Gross v. FBL Fin. Servs., 557 U.S. 167 (2009). This basically means that the termination or other adverse action at issue would not have happened without the unlawful discriminatory motive. This standard is grounded in the language of the statute, 29 U.S.C. § 623(a), prohibiting discrimination “because of” an employee’s age. See id. at 176-77. In contrast, under Title VII’s “mixed-motive” provisions, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). If the employer proves that it would have taken the same action regardless of the impermissible factor, liability attaches but remedies are limited to declaratory and injunctive relief and attorney’s fees and costs directly attributable to the claim; the employee may not obtain damages, reinstatement, or other specific job-related relief. 42 U.S.C. § 2000e-5(g)(2)(B). Babb v. Wilkie, Secretary of Veterans Affairs navigates this backdrop to address a specific provision of the ADEA applicable to federal sector workers. As opposed to private-sector […]

Several recent studies demonstrate that age discrimination is pervasive in American workplaces, which is causing extensive damage to the health and careers of older workers.  According to a 2018 AARP survey, about three in five older workers have either seen or experienced age discrimination in the workplace, and more than nine in ten older workers see age discrimination as either somewhat or very common.[1] This pervasive discrimination can severely harm the careers of older workers, often resulting in negative performance reviews, demotions, and even termination.[2] In fact, the Urban Institute recently found that “[s]lightly more than one-half of full-time, full-year workers ages 51 to 54 with a long-term employer experienced an employer-related involuntary job separation after age 50 that led to a long-term unemployment spell or that reduced weekly earnings at least 50 percent for two or more years.”[3] Regrettably, researchers at Yale University have found that the substantial damages caused by age discrimination extend even further.[4] The researchers found that age discrimination and negative age stereotypes combine to cause Americans aged sixty and over nearly $40 billion in health care costs annually. They further found that ageism causes over seventeen million cases of health conditions per year, including heightened cardiovascular stress and […]

Americans are growing older. According to the U.S. Census Bureau, the current median age for an American is 38, and it is expected to rise to 40 by 2030.[1] In other words, by 2030 the number of Americans who are 40 and above will equal the number of Americans who are younger than 40. At the same time, Americans are working longer and retiring later in life. As a result, the labor force—both those working and actively looking for work—is increasingly composed of older Americans. According to the U.S. Bureau of Labor Statistics, by 2024, one-quarter of the labor force will be age 55 or older.[2] Unfortunately, older Americans are learning that their increased presence in the workforce is not seen by everyone as a positive. The AARP has repeatedly surveyed workers regarding age discrimination. In two separate surveys from 2013 and 2017, over 60% of workers above the age of 44 reported having seen or experienced age discrimination.[3] In a recent study of age discrimination, three economists created fictitious resumes and submitted them to over 13,000 job openings.[4] For each position, the economists submitted three resumes, varying only in the age of the fictitious applicant; one for a young worker (age […]

How did you find your current job?  Was it through an advertisement in the newspaper or another print periodical? And how about if you’re an employer looking to recruit and hire new employees?  Chances are, the answer to all of the above is: the internet.  So, if the employment advertisements that employers/employees use and view are located primarily on the internet, and a company chooses to advertise open positions to viewers/users of a specific age range (say, under 40 years old), does this violate the Age Discrimination in Employment Act (ADEA)’s prohibition against discriminatory publication or advertising by an employer or employment agency, among other provisions? The Northern District of California is poised to confront this very question later this year.  In Bradley v. T-Mobile US Inc., No. 5:17-cv-07232 (N.D. Cal.), Plaintiffs—Communications Workers of America union members and other job seekers over age 40—brought collective and class action claims against Amazon, T-Mobile, Cox Communications, and hundreds of other large employers and employment agencies, arguing that by using Facebook advertisements targeted to younger users, these employers have violated the ADEA, as well as similar state and local laws. Plaintiffs allege that Facebook acted as the agent for the prospective employer companies in […]

Job seekers are well acquainted with the black hole into which their resumes seem to fall.  They may submit dozens of applications to get one interview. And employers do not need a reason to toss a resume – they can lawfully do so for no reason at all.  It is, however, unlawful to reject an applicant because of her age or other protected characteristic. But when the resume black hole is the norm, how does an applicant discover that she was the victim of age discrimination?  And more critically, how does she prove it? Rooting out age discrimination in the application process—before any employment relationship is established—is challenging and may be getting harder. The Age Discrimination in Employment Act (ADEA) is a federal law enacted over 50 years ago to protect people over 40 years old in the workplace.  One way a worker can prove a hiring violation under the ADEA is by showing that the employer intended to not hire her because of her age.  But it can be difficult to prove intent—while blatant discrimination still exists, discrimination is more often subtle than not.   That is why disparate impact claims, i.e. claims that an employer’s neutral policy has a disparate impact on […]

So, you signed a severance agreement. The agreement says that you waived claims under a lengthy list of laws that you’ve never really heard of. In exchange, your former company gave you a few weeks’ salaries. But you think you were the victim of discrimination, and you want to sue the company. Does the severance agreement prevent you from suing? First things first. If you suspect that you have suffered discrimination or retaliation at your job, it is extremely important that you contact an employment lawyer before signing a severance agreement. That’s because you typically cannot get out of a severance agreement that you knowingly and voluntarily entered. Still, even if you’ve already signed an agreement, you should talk with a lawyer. That’s because, in some circumstances, severance agreements (or parts of them) can be found invalid. As it turns out, some legal claims are more difficult to waive than others. Take age discrimination claims. A 1990 law called the Older Workers Benefits Protection Act requires employers to include specific provisions in their severance agreements when employees waive claims under the federal Age Discrimination in Employment Act (ADEA). If the employer slips up, even in the slightest, the employee can still sue for age discrimination. […]