Age discrimination in employment act


American society has grown older as the baby boom generation approaches retirement and health care improves. The percentage of the population in the 40 to 64 age range increased from 24.8% in 1980 to 32.3% in 2005. Recognizing that Americans would continue to face age bias in the workplace, Congress enacted the Age Discrimination in Employment Act (ADEA) of 1967 as part of its broad attack on employment discrimination in the 1960s. An amendment to the Fair Labor Standards Act of 1938, the ADEA adopted antidiscrimination provisions that were substantively almost identical to those of Title VII of the Civil Rights Act of 1964. In the interim, courts have dealt with many ADEA issues, ranging from hiring and dismissal to salaries and early retirement incentive plans.

General Provisions


The ADEA is the primary federal statutory remedy for victims of age discrimination in the workplace. It prohibits employers with 20 or more employees from discriminating against employees and prospective employees (applicants) because of their age in hiring, transfer, promotion demotion, and dismissal as well as in conditions of employment, including compensation and benefit plans. The ADEA also makes it illegal for employers to retaliate against those who oppose a practice made unlawful under the statute or who participate in an ADEA investigation, proceeding, or litigation. Exceptions to the ADEA’s antidiscrimination provisions include bona fide employee benefit plans, such as voluntary early retirement incentive options, and situations where age is a bona fide occupational qualification (BFOQ). The Equal Employment Opportunity Commission administratively enforces the ADEA, which includes notice requirements before a plaintiff can file suit. Courts are authorized to award equitable relief to prevailing plaintiffs, such as reinstatement, back pay, damages, and attorney’s fees.
Originally, the ADEA covered the ages of 40 to 65, later extended to 70; but 1986 amendments removed the upper age limit for all but a few categories that are rarely applicable in the education setting. Initially the ADEA did not apply to public school districts, colleges, and universities. In 1974 Congress amended the act to cover state and local governments (political subdivisions), and the Supreme Court upheld the constitutionality of this extension in the face of a Tenth Amendment immunity challenge in EEOC v. Wyoming (1983).

Application of the Law


Plaintiffs can present either direct or indirect evidence of unlawful age discrimination. In the absence of direct evidence, courts apply a variant of Title VII’s McDonnell Douglas-Burdine allocation of evidence and shifting burdens of proof to ADEA litigation. Plaintiffs must first establish a prima facie case by establishing that they are members of the protected class (at least 40 years of age); were either qualified for the jobs (for which they were not hired) or met the employer’s reasonable job expectations (in cases of dismissal, transfer, or demotion); suffered adverse employment actions; and were replaced by, or treated less favorably than, someone significantly younger, defined by most courts as approximately 10 or more years younger than the plaintiff. Once plaintiffs present prima facie cases, the burden shifts back to employers to produce legitimate, nondiscriminatory reasons for their adverse employment actions. At the final stage, plaintiffs have the opportunity to prove that their employers’ legitimate reason was not true but was rather a pretext for age-based discrimination.
Plaintiffs may bring two types of claims under the ADEA. In disparate treatment cases, protected employees or prospective employees allege that educational institutions dealt with them less favorably based upon their age. For example, the Seventh Circuit in Wickman v. Board of Trustees of Southern Illinois University (1999) upheld a jury’s finding that university officials willfully violated the ADEA in dismissing a 48-yearold managerial employee with glowing evaluations as part of a reduction-in-force plan for a program that ultimately was not eliminated. The program’s accountant testified that the accounting was unreliable (accounting methods were allegedly changed to make apparent surpluses disappear), the deciding administrator stated in a meeting less than a month after the dismissal decision that “in a forest you have to cut down the old, big trees so the little trees underneath can grow” (p. 796), and the dismissed employee’s duties were dispersed among other employees, most of whom were considerably younger than he.
In the other type of action, disparate impact claims challenge facially neutral employment policies or practices that on the surface appear nondiscriminatory but nonetheless adversely affect disproportionately an ADEA-protected group. For example, breaking with another circuit, the Seventh Circuit upheld, as economically defensible and reasonable, a private school’s policy of hiring less experienced, and therefore generally younger, teachers, because they were more affordable on the school’s salary schedule linking wages to teaching experience. Further, in Davidson v. Board of Governors of State Colleges and Universities for Western Illinois University (1990) and MacPherson v. University of Montevallo (1991), two federal appellate courts upheld university compensation plans that based salaries for newly hired faculty and pay raises for current faculty on market value, thereby causing some older faculty to earn less than younger colleagues.

Early Retirement Incentive Programs


The ADEA, amended in 1990 by the Older Workers Benefit Protection Act, provides a safe harbor for universities to offer early retirement incentive plans (ERIPs) to tenured employees. An ERIP must be voluntary, made available to eligible employees for a reasonable period of time, and consistent with the ADEA’s purpose of prohibiting arbitrary age discrimination in employment. Court rulings hinge upon specific details of the incentive plans, and some courts have rejected ERIPs that require educators to retire by a certain age or lose the incentive benefits completely.
In summary, the ADEA protects employees and prospective employees who are 40 and older from employment discrimination based upon age. The act applies to basic employment decisions, such as hiring and dismissal, along with benefit plans and employer attempts to retaliate against employees for opposing practices unlawful under the statute. Courts overturn employment decisions in hiring, dismissal, and demotion when plaintiffs establish that the actions were age-based, but appellate courts have split over the legality of ERIPs that cut off incentives if educators refuse to retire by a specified age. As the American population ages, one can anticipate that older workers will rely increasingly upon the ADEA to press claims of age-based discrimination in the workplace.
Ralph Sharp

See also Age Discrimination; Disparate Impact; Equal Employment Opportunity Commission; Teacher Rights
Legal Citations
Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.
Auerbach v. Board of Education of the Harborfields Central School District of Greenlawn, 136 F.3d 104 (2d Cir. 1998).
Davidson v. Board of Governors of State Colleges and Universities for Western Illinois University, 920 F.2d 441 (7th Cir. 1990).
EEOC v. Wyoming, 460 U.S. 226 (1983).
MacPherson v. University of Montevallo, 922 F.2d 766 (11th Cir. 1991).
Older Workers Benefit Protection Act, 29 U.S.C. § 623(f)(2).
Wichmann v. Board of Trustees of Southern Illinois University, 180 F.3d 791 (7th Cir. 1999).