- Introduction
The Age Discrimination in Employment Act (ADEA) grew out of congressional debate on Title V11 of the Civil Rights Act of 1964 which prohibits discrimination based on color, religion, race, sex or national origin. Instead of including age as one of the categories, the congress then directed the labor secretary to research on the issues and come up with specific proposals prohibiting age discrimination. The congress Accor found out that:
- Older workers were disadvantaged in their effort to retain or get employment once displaced from their work.
- The setting of arbitrary age limits regardless of potential for job performance has become commonplace.
- The incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;
- The existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.
As a response congress passed the ADEA in 1967 to promote the employment of older workers and to prohibit arbitrary age policies in employment. After its enactment, it was amended to expand coverage for older workers. It initially covered employees between ages 40 to 65 but later the upper age limit was extended to age 70 and eventually the limit was abolished altogether. ADEA is enforced by the Equal Employment Opportunity Commission (EEOC); and it allows both the EEOC and a private person to sue for discrimination.
Unfortunately, over two decades after the passage of ADEA, age discrimination is still rampant and presents a big challenge to employment in later life (Rothenberg and Gardner, 2011). Many employees have been engaged in many discriminative actions that are based on age. These actions tend to impact negatively on the employees and cause conflict among the trade unions, employees and their employers. This problem is significantly persistent even in the developed nations where the championing of ADEA has taken a center stage. While many of the employers present their concerns of employing young people rather than the old, ADEA tends to stick only to the exceptions of the law and don’t allow for any excuse to execute discrimination on the part of the employees. However, the problem still persists. This may be attributed to the fact that the implementers of such laws have acted leniently against those who break the law proficient of the ADEA.
Retirement of the old people has been viewed as unaffordable by the old people (Rothenberg and Gardner, 2011). The old people therefore wish to continue working even at their old age. This occasioned the formulation of the ADEA so as to enable the old to continue working without being discriminated for their old age. According to the survey of AARP (2009) as cited by Rothenberg and Gardner (2011), 22% of 767 adults aged 45-54 years have postponed their retirement plans so as to continue enjoying their working plans. The same survey also indicates that 27% of adults aged 54-64 have also abandoned their plans to retire for the same reason. Therefore, there is need for such people to be protected so as to enjoy their work even at old age. For this reason, ADEA has been formed to provide protection to these individuals. Johnson (2009) also suggests that the current world economic recession experienced since 2008 and the depressed housing, pensions, investment returns and credit markets have led the old aged to resort to continued working even in their late years.
The ineffectiveness of ADEA in supporting the socio-economic and civil rights of the old workers has led to various bottlenecks to employment plans and the economic wellbeing of the aged workers. Rothenberg and Gardner (2011) claim that ADEA has not effectively reduced the cases of age discrimination in regards to the hiring and protection of the rights of the old workers at their workplaces. It is further noted that there are 15-20,000 annual cases of age discrimination filed with the Equal Employment Opportunity Commission (EEOC, 2009). EEOC is a commission which is mandated to ensure the compliance with ADEA (Rothenberg and Gardner, 2011).
This paper will therefore attempt to address whether ADEA achieved its major aim of prohibiting discrimination based on age. It will examine the law in depth and seek to extract evidence in the real job market to determine whether employers have actually played their role in adhering to the law or they keep breaking it every now and then. The paper will further consider the actions of employers to ascertain whether they actually contribute to the breach of the ADEA law or the ADEA itself is being too implicating on the part of the employers. In this paper, the cases of both employers and employees are considered. Are the employees being treated well by employers as required by the IDEA? Are the employers keen to follow the ADEA laws as required? The paper will then give recommendations that can be used to seal the loopholes that are often used by employers to break the ADEA laws.
Program theory
Scope and context
According to Feder (2008), Age discrimination in Employment Act (ADEA) is a program/policy which prohibits employers to discriminate against old people of over 40 years in their hiring process. It was formed in 1967 with the aim of promoting employment among old people on the basis of performance and ability rather than age (Feder, 2008). Another objective of the law is also to enable workers and employees to solve the problems inherent in their workplace as a result of age influence.
ADEA applies to employers, employment agencies and labour unions. It requires that employers should not refuse to hire old people because of their age. According to this program, employers are not allowed to discriminate against people on matters pertaining to terms and conditions of work, compensation and employment benefits because of their ages. The statute covers several areas in employment such as hiring, promotion and dismissal or discharge. It also applies to employee benefit plans such as pension plans. Furthermore, ADEA legally guides employers with at least twenty employees for every working day of every twenty calendar weeks of the current or preceding year (Feder, 2008). ADEA is applicable to labour unions if such unions deal with employers on matters concerning labour disputes, employee complains, wages and rates of pay. On the other hand, an employment agency is covered by ADEA if the agency regularly performs procurement roles in the hiring process of an employer. Congressional and some federal employees are also subject to the Age Discrimination in Employment Act (ADEA).
Employers
As pertaining to employers, ADEA covers those employment companies which have twenty or more employees in the twenty working days of the current calendar year or the preceding one. These companies include those companies that are incorporated in foreign countries but are controlled by a US employer. The citizens of USA who are employed by a US employer to work in a foreign country are also covered by the law. The determining factors on whether a company is in control of a US employer are: relationships among operations, common management and centralized labor control system, common ownership and centralized financial control system. ADEA also applies to state governments but employees are not allowed to sue the state for monetary damages since the state is immune to suits, unless it consents to the same or exceptions exist.
Employees
ADEA also covers employees of age 40 and above. It attempts to protect them from age-based discriminations at their workplaces. The law not only protects the existing employees but also extends to potential employees or applicants of a job with a certain employer and employers’ ex-employees who have been dismissed. It also applies equally to private and public employees. However, the elected state employees and their personal subordinates, appointees and legal representatives are exempted from the ADEA’s definition of employees. The program prohibits compulsory retirement of the old people but there are cases where employers are allowed to establish an employee’s compulsory retirement. Such instances include the retirement of a bona fide executive with over 65 years and entitled a pension of over $44,000.
Prohibited Acts
The employment acts and practices prohibited by ADEA include age discrimination in hiring, placement, demotion, promotion, transfer, dismissal, discipline and rewarding (Feder, 2011). The law prohibits age-based discrimination on all employment practices related to the terms and conditions of employment. As such, discriminations regarding leave, salary and other benefits are also outlawed by the policy. ADEA also prohibits age-based discriminations related to employment agencies’ referrals, union acts and unfair dealing with employees for supporting ADEA laws or opposing employer’s age based discriminatory acts. The law prohibits the discrimination against the old people of above forty years but does not protect the young people from age discrimination. Employers may favour the old people over the young, an act which is not prohibited by ADEA. Advertisements for job opportunities are also subject to the ADEA laws. The law prohibits advertisements which specify certain age limits and preferences unless age is an occupational qualification requirement for the job.
Exceptions and Defenses
This program and has some exceptions which include exemptions of executive workers, fire fighters and law enforcers (Feder, 2008). These exceptions are meant to provide defenses for employers so that they are able to strike a balance between their ability to conduct business and the government’s interest to outdo discriminatory practices in employment. For instance, an employer’s action against an employee is exempted from the provisions of the law if such an action is due to a bona fide occupational qualification (BFOQ) that is necessary in the normal conduct of business. In such a case, the employer should be able to justify that the action is a job requirement. He/she should be able to establish that the requirement is substantially necessary for its business conduct and that an alternative individualized approach is not feasible. Other exceptions to the law are: discrimination on the basis of other factors than different from age and disciplining an employee for a good business cause.
Implementation and enforcement
ADEA is enforced by Equal Employment Opportunity Commission (EEOC). The commission is required to conduct an investigation into each age-based discrimination claim for 60 days. Claimants are required by the law to report their cases to EEOC within 180 days of the discriminatory incidence. The EEOC’s activities are often conducted by five commissioners and one general counsel. These officials are presidential appointees who are first approved by the senate before assuming office responsibilities. They are given a term of 4-5 years.
General Overview
Generally, ADEA is meant to address issues regarding to discrimination against age and is therefore a good tool that can be used to protect the old people with ages of over 40 years from incidences in which their employers discriminate against them. The program is also applicable to the instances where employers are age discriminative in their recruitment processes. Some employers tend to recruit employees based on age and restrict old people from applying for job positions within their organizations. Only with the exception of cases where age is a primary requirement of a job, such discriminations against the old is considered by ADEA as being illegal and stern actions can be taken on the perpetrators.
Furthermore, ADEA has become a pillar in the championing of equal employment where the young and the old are able to secure jobs and pursue their career objectives without discriminations related to age. Therefore, the program is generally meant to protect the old people and enable them to act in the capacity of employees and enjoy the benefits there from without any considerations against their age, hence enabling them live equally desirable lives as employees.
Literature Review
ADEA program has drawn very many reactions from many people who are directly or indirectly affected by the program. Some sections of the employment circles question the validity and effectiveness of the law in addressing age-based discriminatory practices among employers. Some employees claim that ADEA has not solved their problems as they were meant to. Others see it as the best tool that has enabled them to indulge in their job activities successfully. Employers also have varied opinions about the admissibility of the program. While some view it as the best milestone towards the building of a good relationship with employees, others claim that the program has adversely affected their normal conduct of business. Some members of the civil society and labour unions have also had their varied opinions regarding the seemingly controversial law. In essence, there are many conflicting grounds of opinion on the effectiveness of ADEA in addressing age-based discriminations. Therefore, several researchers and scholars have emerged with analysis of the law in an attempt to identify the degree of effectiveness exhibited by ADEA in its quest to eliminate age discrimination in employment.
One of the research analyses to be considered by this review of literature is that of Rothenberg and Gardner (2011). The paper observes that old people face difficult moments in their old age as they retire and therefore prefer to work even in their old age. This step is boosted by ADEA policy which protects such individuals from age discrimination. Rothenberg and Gardner (2011) claim that despite the advent of these laws, there are still loopholes inherent in the law which allows for age discrimination. Therefore, the study of Rothenberg and Gardner (2011) reviews age discrimination in employment and analyzes the limited effectiveness of ADEA in protecting the civil and economic rights of old persons at their workplaces. This analysis is done using a generalized gerontology view of workers at their workplace. The authors of this study further provide a discussion of ADEA policy and give policy alternatives regarding employment and the economic and social welfare of older workers.
Rothenberg and Gardner (2011) claim that the main role of ADEA is to enhance access to employment opportunities by older persons of over 40 years. However, ADEA legislation has never been successful in achieving this objective. The law is seen to have been so weakened that it does not sufficiently protect old workers in their employment. The program m has also reportedly been used to rationalize discriminatory acts (Rothenberg and Gardner, 2011). For instance, employers use the concepts of Bona fide occupational qualification (BFOQ) and reasonable factors other than age (RFOTA) to defend themselves and win in most claims of age discrimination claims. The courts often rule that economic necessity and the free market play a crucial part in employee dismissal, overruling age requirements. This is a legal ground of RFOA that has played a center stage in making ADEA unsuccessful in its protection against older workers. Rothenberg and Gardner (2011) claim that over the past two decades court rulings have favoured neo-liberal economics and free markets rather than social justice. The two authors cite in their research paper the case of Marks v. Loral corp. (1997), a case of ADEA that was brought before the California Appellate court in 1997. The court ruled in this case that cost-based dismissals often form part of essential and rational business activities which the employer consider as vital for economic viability.
The policy recommendations of Rothenberg and Gardner (2011) basically involve a significant change to ADEA on matters pertaining the funding, provisions, enforcement and coverage of the law. The two authors recommend that changes need to be made on the existing legislation of ADEA so as to reduce the flaws inherent in the nature and applicability of the law. For instance, one change could be the elimination of the law on Reasonable factor other than age (RFOTA) which enables profit-oriented employers to use other motivating factors to perpetuate discrimination in the reasoning of (RFOTA). The study also recommends that the training and re-education of older people so as to enable them acquire working skills need to be implemented effectively. This program was initiated by ADEA but was not implemented effectively by the required authorities. Rothenberg and Gardner (2011) therefore recommend that such provisions in ADEA should be implemented so as to ensure effective protection of old people from age discrimination.
The effectiveness of ADEA in protecting old workers is also explained by several other studies (Lahey, 2008; Johnson, 2009; Keller, 2006; Macnicol, 2006; Chan and Stevens, 2004; AARP, 2009; Dorsey and Whitney, 2009; and Adams, 2004). Most of these studies suggest that even with the existence of ADEA, there are still a lot of discrimination incidences related to age.
Lahey (2008) suggests that employers find it difficult to hire older people because they perceive that old workers are difficult to train and are not quick to learn new ways of doing things. They are also seen by most employers as inflexible and unable to adapt to change like younger workers. It is therefore necessary for ADEA to implement its policies on training of new employees as suggested by Rothenberg and Gardner (2011). Despite the operation of ADEA over the past forty years, old workers still experience a great deal of age discrimination (Lahey, 2008). This is also supported by Chan and Stevens (2004) who claim that older workers are still in a greater position to be forced to retire than the younger workers.
Johnson (2009) observes that with worsening world economic conditions, the older people are more likely to increase their retirement ages. However, this is often impeded by the fact that age discrimination has played a big role in recruitment among employers. Age-bias seems to take pre-eminence in employers’ recruitment due to the employers’ attitudes towards the competence and behavioral intentions of older people at their workplace. ADEA has attempted to solve this problem by discouraging employers to desist from age discrimination but such legislations have been thwarted by the program’s inability to respond to with old employees’ fundamental social and economic grievances as occasioned by dealings with their employers. The same assertion is shared by Keller (2006) who observes that although ADEA was thought to alleviate age discrimination, more such cases are still prevalent. Keller (2006) claims that the inability of ADEA to address age discrimination appropriately is due to the inclusion of reasonable factors other than age (RFOTA) in its provisions.
More studies also suggest that the fight against age discrimination involves many stakeholders such as the ministry of labour (Macnicol, 2006). It was as a result of a report of the labour secretary to the congress that the anti-discriminatory measures were established under ADEA. In the same token, it can be argued that the involvement of labour ministry in the dealings of ADEA may also increase the effectiveness of the act in eliminating age discrimination. Macnicol (2006) also contends that ADEA was only intended to prohibit unreasonable discrimination. He claims that federal courts often justify age discrimination in employment whenever there is a rational basis for it. Such rational basis may include RFOTA (Keller, 2006) and BFOQ (Rothenberg and Gardner, 2011). Employers use such reasonable factors to engage in discrimination acts and win cases filed against them in courts. This has led to increased number of age discrimination claims in courts. Macnicol (2006) suggests that age-based discrimination claims have increased from 10% in 1980 to 25% in 1991. Many court rulings have always favoured employers, hence motivating employers to continue engaging in age discrimination acts because they are never punished for discrimination.
Dorsey and Whitney (2009) also carried a study on the effectiveness of ADEA and found out that the underpinning rule of ADEA is primarily based on age as the factor of consideration in ADEA. Whenever a victim of age discrimination presents a claim of age discrimination in court, he/she must provide evidence that age was the “but-for” cause of employer’s discriminative act. Dorsey and Whitney (2009) use an example of a case where Gross sued his employer FBL Financial Services, Inc. for discriminating against him on the basis of age by shifting him to a new department, an act which he considered as a demotion. In the court ruling, Gross was required to prove that age was the motivating factor for his demotion. The court ruled in favour of Gross but FBL appealed and the appellate court overruled the decision of the high court claiming that it misinterpreted the provisions of ADEA. The appellate court held that age was not proved sufficiently by Gross as the “but-for” cause of FBL’s action. Due to this ruling, Dorsey and Whitney (2009) observe that it is difficult for plaintiffs to prove a case of age-based discrimination under ADEA. They contend that plaintiffs now have to provide more reasonable “but-for” tests to prove their claims. Victims of age discrimination also find it difficult to exercise persuasion in ADEA cases. Therefore, ADEA has not fully achieved its objective of protecting old employers from age discrimination.
Research Design
Hypothesis testing
The hypothesis that this research is going to test are:
- H1 – Age Discrimination in Employment Act (ADEA) has not effectively achieved its objective of protecting old people from age discrimination. This hypothesis will be tested using a cross-examination of cases and activities related to age discrimination in employment over the recent past.
- H2 – Age Discrimination in Employment Act (ADEA) needs to change some of its provisions such as BFOQ and RFOTA in order to effectively address the issues related to age discrimination in employment and protect old employees from age discrimination. This hypothesis will be tested by cross-examining secondary information and trends on age discrimination cases in courts and determining whether such provisions as RFOTA and BFOQ delimit the role of ADEA in protecting old people from age discrimination.
- Variables and measurements
This research design will adopt the causal effect design suggested by Campbell and Stanley (1966). In this case, the cause is enforcement of ADEA program while the effects are the reduction of age discrimination in employment and protection of employees. The reduction of age discrimination and protection of employees shall be measured using the number of age discrimination cases presented recently in courts. If the research indicates that the number of cases reported in courts concerning age discrimination has risen, then it will be plausible to conclude that the program has failed to address age discrimination effectively as it was meant to.
Research methodology
The data to be used in this research will be collected from secondary sources. This involves the use of internet as a secondary source of information. The data collection will therefore involve researching for information from the internet so as to determine what cases have been reported regarding age discrimination, which ones have been resolved successfully in favour of old employees and which ones have been won by employers. The internet data collection will then identify the underlying reasons for the success or failure of those cases. Another secondary source of information in this paper will also be articles and journals which indicate other people’s research and findings on age discrimination and the role of ADEA. Various authors have indicated in their articles opinions on ADEA backed by academic reasoning and evidence. Such information will be collected in this paper as a basis of determining whether ADEA has succeeded in addressing age discrimination or not.
Finally, the information obtained from the above secondary sources will be subjected to a rigorous causal-effect analysis. This will involve qualitative analysis of the data obtained from secondary sources using appropriate qualitative tools. In this analysis, the relationship between enforcement of ADEA as a cause and the number of age discrimination cases as effect will be established. The results obtained will then be interpreted and presented in tabular form to explain the effects of ADEA enforcement.
Threats and limitations
This research design is faced with quite a number of challenges. First, secondary data collection exercise is cumbersome and time consuming. It takes a lot of time and effort to search for secondary information from libraries, internet and other academic places. Secondary information may also not be up to date and inaccurate. This may result in inaccurate analysis and hence unreliable findings. Some of the secondary sources are also difficult to interpret and analyze. The methodologies used by some of the secondary sources are so complex that it may be difficult to understand their information.
Another limitation of this study is that it may be difficult to measure and quantify the variables being analyzed. The number of age discrimination cases may be estimated without accuracy and the causes’ level of enforcement of ADEA may not be measured with certainty. The number of cases being presented in courts may not necessarily be due to age discrimination but claimed so wrongly by employees. This leads to an inclusion of unnecessary data for the analysis which yields inaccurate results.
- Program recommendations
From the literature review of this paper, ADEA seems not to have succeeded in protecting the old workers from age discrimination. The reasons cited by most studies are that there are inclusions of provisions which are used by employers to disguise their intentions to discriminate against old workers. For instance, reasonable factors other than age (RFOTA) are used by employers as a motivating factor in their court cases of age discrimination (Keller, 2006). Bona fide occupational qualification (BFOQ) may also be used by employers to perpetuate age discriminations (Rothenberg and Gardner, 2011). Therefore, this paper recommends that the provisions of ADEA should be reformed and amended to be more protective to age discrimination victims. RFOTA and BFOQ should be removed or changed in favour of old employees. Better yet, these provisions may be backed by other stringent policies on employers.
Furthermore, Dorsey & Whitney (2009) observe that Gross in the case of Gross v. FBL Financial services, Inc. lost his case of age discrimination due to lack of substantial prove of age as the “but-for” cause of his demotion. This shows that it is difficult for old employees to prove that their age influenced their employees to discriminate against them. Therefore, this paper also recommends that additional laws should be provided to back up the evidence of employees in their cases of age discrimination. Similarly, old employees should be provided with lawyers and/or be protected by a body of lawyers who will represent them in court proceedings on age discrimination. This will enable them present their evidence more legally and substantially since lawyers and ADEA representatives will provide better arguments in court than the employees themselves, hence presenting more reasonable prove of age as the motivating factor in their cases of discriminations in court.
Finally, old employees should be trained and re-educated so as to increase their knowledge and skills at their workplace. This will enable them to adapt to changes in the company and to learn new ways of doing things as the dynamics of business play part of their companies’ development. Rothenberg and Gardner (2011) suggest that employers discriminate against older people because they cannot adapt to the changes within their companies, hence posing redundancy and low performance in their companies. Therefore, it is important to train and re-educate them so as to enable them develop necessary skills and competencies.
References
Adams, S. J. (2004). Age discrimination legislation and the employment of older worker. Labour Economics, 11, 219-241.
American Association of Retired Persons (AARP). (2009). AARP bulletin survey on employment status of the 45+ population. Retrieved from http://www.aarp.org/research.
Campbell, D.T. and Stanley, J.C. (1966). Experimental and Quasi-Experimental Designs for Research. Chicago, Illinois: Rand McNally.
Chan, S. & Stevens, A. H. (2004). How does job loss affect the timing of retirement? Contributions to Economic Analysis & Policy, 3 (1), 10-12.
Crain, M. (2006). Strategies for union relevance in a post-industrial world: Re-conceiving antidiscrimination rights as collective rights. Labor Law Journal, 57(3), 158-170.
Dorsey & Whitney LLP (2009). Gross v. FBL Financial Services, Inc.: Age Discrimination Cases are a Different Breed. Attorney articles. Retrieved from http://www.dorsey.com/age_discrimination_cases_different_breed/
Feder, J. (2008). The age discrimination in Employment Act (ADEA): A legal overview. CSR Report for congress.
Grossman, R. J. (2003). Are you overlooking older workers? HR Magazine, 48(8), 40-46.
Harcourt, M., Wood, G., & Harcourt, S. (2004). Do unions affect employer compliance for the law? New Zealand evidence for age discrimination. British Journal of Industrial Relations, 42(3), 527-541.
Hedge, J. W., Borman, W. C. & Lammlein, S. E. (2006). The aging workforce: Realities, myths, and implications for organization. Washington, DC: American Psychological Association.
Johnson, R. W. (2009). Employment opportunities at older ages: Introduction to the special issue. Research on Aging, 31(1), 3-16.
Keller, D. (2006). Older, wiser and more dispensable: ADEA options available under Smith v. Jackson: Desperate times call for disparate impact. Northern Kentucky Law Review, 22(2), 259-281.
Lahey, J. (2008). Age, women, and hiring. Journal of Human Resources, 43(1), 30-56.
Macnicol, J. (2006). Age discrimination: An historical and contemporary analysis. Cambridge: Cambridge University Press.
Marks v. Loral Corporation. California Court of Appeal, Fourth District, Division 3. (1997). Retrieved from http://caselaw,findlaw.com/ca-court-of-appeal/1122261.html.
Mosisa, A. & Hipple, S. (2006). Trends in labor force participation in the United States. Monthly Labor Review, 129(10), 35-57.
Rothenberg, J.Z. and Garner, D.S. (2011). Protecting Older Workers: The Failure of the Age Discrimination in Employment Act of 1967. Journal of sociology and social welfare, 38 (1), 9-30.
Segrave, K. (2001). Age discrimination by employers. Jefferson, NC: McFarland & Company, Inc.
Townsend, P. (1981). The structured dependency of the elderly: A creation of social policy in the twentieth century. Ageing & Society, 1, 5-28.
Weiss, E. M. & Maurer, T. J. (2004). Age discrimination in personnel decisions: A re- examination. Journal of Applied Social Psychology, 34(8), 1551-1582.
