EEOC Acting Chair Victoria Lipnic said Thursday the Age Discrimination in Employment Act of 1967 – which turns 50 Friday – “deserves a thorough review to insure it is meeting the needs of today’s workforce.”
In addition, she said, “We need a cultural awakening. Instead of negative expectations, how about recognizing the positives? Age diverse teams and cross-generational mentoring produce real benefits for both workers and employers.”
“Utilizing the talent of everyone, regardless of age, is good business. This is talent that our economy cannot afford to waste. . .” – Lipnic
Lipnic was not specific about why she believes the ADEA deserves a thorough review; how the ADEA may be failing to meet the needs of today’s workforce; and whether the ADEA will indeed get the thorough review that it deserves.
Lipnic focused on what she characterized as the ADEA’s success. She noted the ADEA was adopted in 1967 when “age discrimination was blatant. Workers over age 45 were barred from many jobs based solely on their age and mandatory retirement was commonplace for those in their 60s. Since then the ADEA has largely stopped openly discriminatory practices. But age discrimination is still too common and often accepted.” She said older workers continue to confront negative stereotypes and that age discrimination deprives them of their dignity and financial security.
But is the ADEA a success?
Others would point to evidence that age discrimination remains blatant, epidemic and unaddressed 50 years after the ADEA’s adoption.
Older workers are (and have been for years) significantly underrepresented in the high-tech industry while Silicon Valley employers unabashedly word job advertisements to discourage older applicants. Some, for example, advertise to hire “digital natives” or specify a maximum number of years of experience.
The U.S. government is openly engaged in blatant age discrimination in hiring through the Pathways Recent Graduates program, which since 2012 has barred older workers from applying for almost 100,000 jobs. When former President Barack Obama signed an executive order in 2010 establishing the program, he sent a message to private sector employers that age discrimination was reasonable, necessary and would be overlooked. And it was overlooked.
The ADEA’s 50-year-old mandatory retirement provision still exists for a large swath of workers, including public safety workers who are forced to retire with fat pensions and then go on to perform the same work in private industry. Some also might argue that while formal “mandatory retirement” rules are largely gone, older workers are effectively pushed out of the workforce by age discrimination. Older workers disproportionately languish in long-term unemployment and end up in temp, part-time or low wage work. Many are forced to retire as soon as they become eligible for Social Security, which results in lower Social Security benefits for the rest of their lives. Research shows that older women suffer the highest rate of age discrimination in hiring.
Lipnic did not address criticism that the EEOC failed to aggressively enforce the ADEA during and since the Great Recession, has ignored blatant age discrimination in hiring by Silicon Valley and the federal government, and itself discriminates against older workers in administrative decision-makings and in hiring.
Finally, Lipnic said the basic purpose of the ADEA is that “ability matters, not age.” However, that’s not what President Lyndon B. Johnson said after he signed the ADEA into law. Johnson said:
The ADEA “does require that one simple question be answered fairly: Who has the best qualifications for the job?”
There’s a big difference between “ability” and “qualifications.” Society traditionally had judged ability by qualifications. However, the EEOC issued at least two decisions this year in which objective qualifications were ignored and hiring decisions were based upon subjective criteria like poise and cultural fit. In one case, the EEOC ruled a middle-aged male hiring officer for the Social Security Administration did not engage in age discrimination when he refused to hire a 60-year-old women who did not fall within his perception of “cultural fit.” Instead, the hiring officer selected five applicants under the age of 40, including many recent graduates.
In my groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note the ADEA is far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I note that a broad swatch of discrimination that is illegal under Title VII is perfectly legal under the ADEA. Since its adoption, the ADEA has been eviscerated by the U.S. Supreme Court which, among other things, ruled in 2009 that ADEA plaintiffs must show a much higher standard of causation than Title VII plaintiffs. In addition, the ADEA does a poor job of deterring age discrimination because it sharply limits the amount of damages that an ADEA plaintiff can recover. Unlike Title VII, the ADEA does not permit plaintiffs to seek compensatory damages for emotional distress or punitive damages.