Have You Ever Heard of the Age Discrimination in Employment Act?

I didn’t want to make you wait too much longer for this one – last week, I mentioned the Age Discrimination Act and I am sure that several of you scowled because you’re used to hearing about the Age Discrimination in Employment Act (29 U.S.C. § 621).

  • Who does it apply to?: All employers who have “engaged in an industry affecting commerce” (read: pretty much all employers) and who have 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Cliffnotes version: if you are an employer with at least 20 employees, this probably applies to you.
  • Who does it protect?: All applicants and employees over age 40.
  • What does it do?: It prohibits employers from making decisions that affect the terms and conditions of employment for an applicant or employee (e.g., compensation, promotion, training, etc.) based solely on the person’s age; however, nothing in the statute prohibits an employer from offering a voluntary retirement program to an employee over age 65 who held a bona fide executive or high policy-making position.
  • Who enforces it?: U.S. Equal Employment Opportunity Commission
  • Reporting deadlines: None.
  • Document retention requirements: None.

The “based solely on” part of the prohibition is important. At one time, an employee could successfully prove age discrimination by establishing that their age was even one of several factors the employer considered in changing their terms and conditions of employment (i.e., that the employer had a “mixed motive”). After the Supreme Court’s decision in Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009), an employee could only prevail by establishing that age was the “but-for” cause (i.e., the sole reason) for the decision.

At some point, we will discuss the idea of obtaining a waiver and release of claims from an applicant/employee. A waiver and release generally appears in a settlement agreement or separation agreement with an applicant/employee, and is a very long paragraph that lists statutes under which an employee could assert claims. Well, there is a special procedure that an employer has to follow when asking an applicant/employee to release age discrimination claims, and those procedures appear in the Older Workers Benefit Protection Act (“OWBPA”). That is just a quick preview, but I promise, we will talk about it another day…

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Have You Ever Heard of the Age Discrimination Act?

Now, wait a minute, employment lawyers – I didn’t say the Age Discrimination in Employment Act. We’ll get to that one another time. This post is about the Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.), which is a little different. Here is the quick and dirty:

  • Who does it apply to?: All programs and activities receiving federal financial assistance (e.g., colleges and universities).
  • Who does it protect?: Applicants and participants in programs and activities receiving federal funding assistance.
  • What does it do?: It prohibits age discrimination in programs and activities receiving federal financial assistance, unless the program, by law, requires that age be considered. That is, a program can reasonably take age into account as a factor necessary to the normal operation or achievement of any statutory objective (e.g., providing special benefits to children or the elderly), or if the differentiation is based on reasonable factors other than age.
  • Who enforces it?: U.S. Department of Labor (Civil Rights Center)
  • Reporting deadlines: None.
  • Document retention requirements: None.

On its face, the statute does not protect individuals of a particular age like the Age Discrimination in Employment Act does. I suspect that the intent here was to prevent colleges and universities from, for example, applying a blanket prohibition against admitting students over a certain age. However, there is language in the statute that would allow a program or activity to consider age if it is “necessary to the normal operation or achievement of a statutory objective.” I’m curious to see how this language is applied in different contexts in higher education. Stay tuned…