Back to Basics: The Ins and Outs of The ADEA

As we continue our journey into the basics of federal employment laws, here is the third of five in our series, this time we’ll discuss the Age Discrimination in Employment Act (ADEA).

Imagine a woman named Dorothy has worked at an interior design firm for the last 30 years. She started out a few days after she turned 25, which makes her 55 years old. The firm recently announced plans to downsize, which include layoffs. When executives relayed this information to Dorothy and her co-workers, they mentioned that this would bring the firm an opportunity to refresh its practices and realign itself with up-and-coming styles palatable to young people. The executives emphasized that employees who continued on with the firm would need passion and “a fire in their bellies” to freshen up the firm’s practices.

When Dorothy received notice of her layoff, she was surprised; years of good performance reviews seemed to reassure her of her career’s longevity at the firm. She felt she had been discriminated against because of her age and told her manager she had plans to call a lawyer and possibly file suit.

I suspect Dorothy’s inclination to seek legal help might be warranted, considering the protections the Age Discrimination in Employment Act (ADEA) has set up. The ADEA is a federal law that prohibits employee discrimination and harassment on the basis of age and more specifically on the basis of an individual being 40 years or older.

Because this law deals with only one protected class — unlike Title VII of the Civil Rights Act of 1964, which deals with discrimination on the basis of race, sex, national origin, color and religion — its basics can be explained with relative simplicity. Let’s get to it.

How It Works

The ADEA has created a protected class out of employees and applicants who are older than 40. Employers should note that some states have set up age-related protections for workers younger than 40, as well.

Continuing to line up with Title VII, the ADEA has been interpreted to prohibit harassment and retaliation. This law applies to private employers with at least 20 employees, state and local governments, employment agencies, labor organizations and the federal government, according to the Equal Employment Opportunity Commission, which enforces it.

Where Employers Mess Up

Age-Discriminatory Language

Our firm consistently tell employers to avoid using language that can be construed as age-discriminatory.

Managers sometimes use language that, outside of the workplace, wouldn’t raise an eyebrow. Adages like “you can’t teach an old dog new tricks” and phrases like “new blood” as language that gets employers into trouble.

When somebody says this regarding an older worker, peoples’ antennas go up because it sounds like there is age stereotyping going on. Most of the time we wouldn’t think there’s any problem with that language, but in age cases that can sometimes be evidence of bias toward older workers.

Ill-Planned Layoffs

When a business must downsize, leaders may be tempted to cut older workers who may make more, and thus save the company more money.

Older employees generally, because they’ve been in the company longer, tend to be more senior, more highly paid. Seniority is a legitimate, bona fide justification for wage difference in the same job. But when leaders hand out pink slips to workers who make more so they can save more, they’ve “inadvertently walked into an age discrimination claim.

Sloppy Performance Reviews

Sometimes a new manager will take over a group of employees and fire an older worker for poor performance. That move could be in the clear, legally speaking, if performance reviews reporting the worker’s slapdash work are on file. But often that’s not the case and a manager ends up facing age discrimination claims.

If you’re going to have a performance evaluation system, you’ve got to be honest. You’ve got to make it work. You have to be meaningful in your evaluations with people. If you don’t, they’re going to come back to bite you.

Unconscious Bias and Stereotypes

Employers can sometimes let unconscious bias go unchecked among business leaders. This can create major problems for good-intending people.

We all have our biases based on our own backgrounds and experiences. It’s important for us to recognize that those exist and learn how to deal with them. It’s important to prompt managers to avoid stereotyping workers.

Any assumption that older workers are less confident or less energetic can lead to a charge of age discrimination if employers are making decisions based on that.

Best Practices

To avoid age discrimination-related mistakes — and litigation — employers may want to consider putting these best practices into their own.