With layoffs and job abolishments on the rise, threats to cut employee benefits, recent controversial United States Supreme Court decisions, and the current economic state of our nation and Ohio in particular, it may come as no surprise that allegations of age discrimination are on the rise. On July 15, 2009, the Equal Employment Opportunity Commission (EEOC) held a hearing in Washington, D.C. to address the growing number of age discrimination claims filed with the EEOC. According to EEOC Chairman Stuart Ishimaru, age discrimination claims are up 29% since 2008, and one-quarter of EEOC charges include an age discrimination component.1
What is the ADEA?
The Age Discrimination in Employment Act (ADEA) protects individuals from employment discrimination based on age. In general, under the ADEA, it is unlawful to discriminate against a person 40 years of age or older because of age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
Ishimaru explained that age discrimination cuts broadly across social status, race, gender, and many other categories. Despite laws to protect older workers, “[w]hether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination.”2 Ishimaru said that “[e]mployers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations. As a result, older workers may be disproportionately selected for layoffs during reductions in force.” Workers who have lost their jobs, the argument continues, may have more difficulty obtaining another job than their younger counterparts due to age discrimination.
The Commission expects the trend of allegations of age discrimination to continue. If that is indeed the case, advice offered by panelists at the EEOC hearing to avoid age discrimination claims may prove useful.
The EEOC responds to the Rise in Age Discrimination Claims
The EEOC’s panel of experts addressed issues including stereotyping in the workplace and its effect on age discrimination. The panel recommended the following to employers: 1) focus on the individual job-related characteristics of employees; 2) start with analysis of the work to be done, and the knowledge, skills, and other human attributes required to perform the work; and 3) monitor the impact of employment decisions on age, just as employers do for race and gender, and take action when disparities occur.
Recent Supreme Court Precedent on Age Discrimination
The panel also discussed the recent United States Supreme Court decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). Justice Thomas, writing for the majority, specified that a plaintiff who brought a disparate-treatment claim under the ADEA had to prove, by a preponderance of the evidence, that age was the “but for” cause of the challenged adverse employment action. Thus, a Plaintiff may not rely upon a “mixed-motive” theory (i.e. that the plaintiff suffered an adverse employment action because of both permissible and impermissible (i.e. age) considerations) available under Title VII. According to American University law professor Cathy Ventrell-Monsees, the Court exercised “the epitome of judicial activism.”3 Among other things, Professor Ventrell-Monsees urged that Congress eliminate the differences in standards of proof between ADEA, ADA, and Title VII cases.
Construction of valid waivers under the ADEA
In response to the rise in age discrimination claims, and as part of the July 15, 2009 hearing, the EEOC also released a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in return for a waiver of discrimination claims under the ADEA. Though severance packages are not used in the public sector, oftentimes settlement agreements that include waivers of age discrimination claims can reduce an employer’s risk of future liability.
The technical assistance document tracks the 1990 Older Workers Benefit Protection Act (OWBPA), which amended the ADEA. The OWBPA established certain minimum requirements that must be met in order for an ADEA waiver to be valid. In particular, Congress added a section, providing that an individual may not waive any right or claim under the ADEA unless the waiver is knowing and voluntary.4 The Amendments set forth the minimum requirements for making a waiver knowing and voluntary.
To be valid, a waiver must:
a) be in writing;
b) be drafted in language understandable to the average person;
c) specifically refer to ADEA rights or claims;
d) not waive rights or claims that may arise in the future (i.e. after the execution of the agreement);
e) be in exchange for valuable consideration;
f) advise the individual in writing to consult an attorney before signing the waiver; and
g) provide the individual at least twenty one (21) days to consider the agreement and at least seven (7) days to revoke the agreement after signing it.
If a release does not include each of the release requirements as specified by the statute, the release is subject to challenge and cannot bar a subsequent ADEA claim.
Though it is virtually impossible to eliminate claims of age discrimination, taking appropriate preventive measures, such as consulting counsel and making well-reasoned and deliberate decisions devoid of age considerations, can help to lessen the potential for litigation.
Megan H. Boiarsky
Former Assistant Attorney General
1 “EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance Document,” Washington Labor & Employment Wire, July 16, 2009.
2 “EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance Document,” Washington Labor & Employment Wire, July 16, 2009; “Daily Document Updates -- Employment Law,¶69,344DEEOC holds hearing on age bias, issues Q&A on waivers in severance agreements — AGE DISCRIMINATION, (Jul. 16, 2009).” Wolters Kluwer Law and Business. http://intelliconnect.cch.com/scion/secure/index.jsp?ScionUser=true&refURL=http%3A%2F%2Fhr.cch.com%2Fprimesrc%2Fbin%2Fhighwire.dll#page[2] (last accessed October 8, 2009).
3 “EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance Document,” Washington Labor & Employment Wire, July 16, 2009.
4 29 U.S.C.S. §626(f)(1) – (2).