Government Involvement

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Age Discrimination in Employment Act

The purpose of the Age Discrimination in Employment Act (ADEA) as stated in the United States Code is “to promote the employment of older persons based on ability rather than age, to prohibit arbitrary age discrimination in employment, and to help employers and workers find ways to address problems arising from the impact of age on employment” (qtd. in Dennis and Thomas 2).

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Signed into law by President Lyndon B. Johnson in 1967, the ADEA has been the most significant formal acknowledgment of Ageism in the Workplace. The act legislated a wide ban on discrimination for older workers, such as:

Discrimination in hiring, promotions, wages, and termination of employment and layoffs
Denial of benefits to older Employees
Mandatory retirement in most sectors (since 1986)

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While the ADEA has been instrumental in combatting age-based discrimination in the workplace since its inception, it has become less effective in recent years due to inadequate governmental support and loopholes exploited by companies. We must address these issues to promote change within our government and the workplace.

Holes in the ADEA and EEOC

Although data suggests that both the ADEA and EEOC have helped to increase the employment of older workers, many barriers to employment still exist.

Gross v. FBL court hearing (Gross is seen far right)

U.S. Equal Employment Opportunity Commission

Gross v. FBL

In 2009, the Supreme Court case Gross v. FBL made cases under the ADEA much harder to prove. Before the ruling, a plaintiff needed to only show that age was among the reasons they had been fired or set back by their employer. Yet, as a result of the ruling, "future plaintiffs [are now required] to demonstrate their age was the main or determining reason for their employers' behavior" (Olen). Thus, this Supreme Court case severely elevated the standards of evidence required to prove an age-discrimination case, making it significantly more challenging for older employees to prove they were discriminated against, and much easier for employers to get away with it. Unfavorable government rulings, such as Gross v. FBL, have led to countless age-related discrimination cases going unsolved and, more often than not, simply rejected.

Laurie McCann, Senior Attorney with the AARP Foundation explained, “It’s rare for an employer to say, ‘I don’t want to hire you or I am going to fire you because you are too damn old'" (Olen). Because evidence is so hard to come by, and the ruling has been shifted in such a dramatic way, many older workers feel the odds of finding justice through our current system are seemingly impossible.

Although the ADEA worked in its initial debut to eliminate commonplace ageist practices, our current government system has not only failed in supporting older workers through legislation, but instead actively worked to hurt—and deny support to—this marginalized workforce.

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Equal Employment Opportunity Commission (EEOC)

Similarly, there have been equally troubling issues in the Equal Employment Opportunity Commission, the main body that enforces the ADEA.

Despite the high number of cases brought to the EEOC, many are turned away due to plaintiffs lacking sufficient evidence to prove their case—a direct result of the challenging standards of evidence set in Gross v. FBL. In fact, "In 2005, some 16,585 age-bias complaints were filed with the Equal Employment Opportunity Commission (EEOC)... [and] two-thirds (63 percent) were thrown out because of no reasonable cause" (Dennis and Thomas 2). Similarly concerning is the fact that "Only 1.2 percent [age claims filed] were resolved with successful conciliations" (Dennis and Thomas 2). This statistic alone highlights the failure of the current system and its ability to both prevent ageism and fight against it in court.

As Sian-Pierre Regis, a board member of the National Council of Aging, put it, "When you’re fired because you're ‘too old,’ it happens all the time, and it’s never prosecuted. It almost doesn’t matter. It’s very hard to prove. If a company did get sued for firing somebody because they were ‘too old,’ you need documentation that is impossible" (Danigelis and Regis). Although Regis's assertion that this evidence is "impossible" is a hyperbole, it still accurately reflects the severity of how difficult it is for older employees to file age successful age discrimination complaints with the EEOC displayed in the previous statistics. Indeed, "In 2002, the EEOC filed only 29 lawsuits out of 19,921 age discrimination charges brought" (Dennis and Thomas 2). For many, enforcement has been put on the individual to hire a private attorney or law firm to pursue their case, and in many instances, due to the cost and the burden of evidence placed upon them by the federal courts, those impacted by age discrimination never receive the justice they deserve.

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Another major issue is the perception of ageism as an economic issue instead of a civil rights issue. Freedom from other forms of discrimination such as race and gender are treated with a higher level of concern and denounced by the general public, often leading to remedial action. The Age Discrimination in Employment Act (ADEA) "differs from [other Civil rights legislation in the 1960s]...because ADEA cases don't allow compensatory or punitive damages" (Applewhite 154) . This clear distinction between ageism and other forms of discrimination not only demonstrates our country's general perception of ageism as a secondhand form of discrimination, but more importantly disallows those affected by ageism in the workplace to seek the financial aid and retribution they deserve.

What is Being Done

Efforts to address ageism within the government are gaining momentum, with initiatives taking shape at both state and federal levels. In New York, the state Senate passed a bill in 2022 that largely prevents employers from asking age, birthdate, or year of graduation on job applications (Tileva). By prohibiting employers from asking for age-related information unless directly relevant to the job, the legislation would promote fair hiring practices and create more opportunities for individuals regardless of their age. This decision would not only protect the rights of workers but additionally foster a more inclusive and diverse workforce, benefiting both the employee and employer.

Still Work Ahead...

The Gross v. FBL decision has left much fighting to reverse the case to make future ADEA cases more equitable and protect older workers from discriminatory practices. However, recently, the Protect Older Workers Against Discrimination Act, which would lower the high evidence standards ruled in Gross v. FBL, has passed through the House of Representatives. Yet this bill has been unable to pass through the Senate, failing in a 2019 vote (Olen). Unfortunately, the failure to undo this Supreme Court case in Congress further proves how the government lacks proper legal protection for older workers. More importantly, our most crucial step in combating ageism, especially within our government and legal system, is to treat ageism as just as important as other forms of discrimination. This would not only grant greater legal protection for this form of discrimination but would also shift public opinion toward a more accepting and equitable society.

Gross in recent court address of the Gross v. FBL decision

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