ADEA and the Courts: Age Discrimination in the Workplace

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HR leaders are currently juggling multiple generations in the workplace. According to Forbes, by 2020, we will have five generations in the workplace as people expand their time working. With these populations, age discrimination in the workplace could ultimately increase, so naturally there is a possibility that litigation surrounding such discrimination claims could increase as well.

The ADEA and Litigating Age Discrimination

When the Age Discrimination in Employment Act (ADEA) was enacted in 1967, Congress declared that this Act would make age discrimination in the workplace unlawful. Fifty years later, the ADEA is still alive and well. From 1996-2016, 610 ADEA enforcement suits were filed with the Equal Employment Opportunity Commission (EEOC), and then resolved in Federal Courts, with claimants recovering $2.42 billion.

So what should HR leaders learn from ongoing ADEA litigation?

Lessons to Apply

1. Train your staff not to indicate personal preferences for hiring younger workers

Several recent cases have highlighted employer ADEA violations where employers verbalized preferences for younger workers over individuals age 40 and above. For example, on Sept. 9, 2016, the EEOC sued a hospital in Colorado under the ADEA for terminating a group of employees aged 40 and older. The EEOC alleges that hospital managers said they preferred younger, "fresher" nurses.

Examine your workplace for this type of illegal preference for younger workers. Further, tell your staffs to not express their preferences for hiring individuals under age 40, as this is a direct violation of the ADEA.

2. Don't offer retirement plans that disfavor older employees

Such plan structures directly violate the ADEA, and more than likely other federal laws. For example, in a 2014 case against a public entity, the 4th Circuit found that a county violated the ADEA by offering a pension plan that required older employees to contribute a higher percentage of their salaries.

Plan sponsors should review their plan designs to confirm they are not discriminating against an ADEA protected class.

3. Confirm that your policies and procedures — although neutral on their face — don't have a discriminatory effect

For example, in an issue of first impression, the 11th Circuit decided en banc that only employees, not applicants, may bring ADEA disparate impact claims against a prospective employer that has policies and procedures that are neutral on their face and lack any discriminatory intent, but have a discriminatory effect.

Employers should review their internal policies, as well as their hiring guidelines, to confirm that such procedures are not inadvertently targeting a protective class.

4. Review your hiring and recruiting policies, procedures and practices

In a 2017 settlement with a restaurant, the EEOC resolved an age discrimination claim for $12 million in an ADEA lawsuit, the restaurant had denied older workers the opportunity to serve as hosts, servers and bartenders. As part of the settlement, Texas Roadhouse must amend its hiring and recruiting policies as well as hire a diversity director and a compliance monitor.

Although most employers don't have hiring practices that are this discriminatory on their face, employers can still take a lesson from this suit.

As more generations continue to enter into the workforce, and as current generations continue to work longer, HR leaders must continually review and monitor their employment practices. Being proactive in this area will serve an organization well, as litigation and agency action is not only expensive, but can add stress, worry and interruption to an organization. Taking the time to confirm that policies and procedures are in accordance with current litigation trends can allow businesses to address concerns proactively.

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