Employers are prohibited from doing a number of things according to the terms of the Act. Employers cannot fail or refuse to hire an employee because of that person's age. They cannot limit, segregate, or classify its employees in a way that would deprive someone of employment opportunities because of their age. Also, they cannot reduce the wage rate of an employee based on their age. Finally, employers cannot indicate in notices or job advertisements a preference for a person of a certain age. Victims of age discrimination are subject to remedies found in the ADEA. These remedies include back pay, hiring, promotion, reinstatement, front pay, liquidated damages, or other legal or equitable remedies that are deemed necessary to effectuate the purpose of the statute. Additionally, the statute permits award for attorney's fees, expert witness fees, and court costs.
A couple of years back, a Denver news reporter was subject to age discrimination and took his employer to court. David Minshall had been a reporter with a Denver television station for 17 years when owner McGraw-Hill Broadcasting Company decided not to renew his contract in March 1997. At the time that they decied not to renew his contract, David was in his fifties. During the trial, McGraw-Hill presented evidence that its decision not to renew David's contract was based on poor performance and not that of age. Specifically, they said he had poorly written scripts, tardiness, and unethically disclosing the identity of a confidential informant. Minshall then countered with a co-worker's testimony that his scripts were no worse than any other reporter's. He stated that he had never been told that his spelling or punctuality were problems or grounds for termination. The jury found that the television station violated the Age Discrimination in Employment Act and awarded David Minshall back pay, front pay and liquidated damages in excess of half a million dollars.
Larry Lorber, a partner in the Washington, D.C. law firm of Proskauer Rose LLP had this to say about the ADEA.
How is ADEA case law changing?
As the law develops under the ADEA, you're finding more mature issues which haven't been faced yet. These issues just haven't come up because even though the ADEA is 35 years old, it's a more limited statute: You can't discriminate on the basis of age. But now the United States has an aging workforce. We're also, in this economy, seeing the need to cut payrolls and how that applies to employees' age. All those issues which never really had a face in many respects are now coming out. So we're finding that more subtle issues concerning benefits are coming to light. We're also seeing disparate impact as applied to the age act becoming a major issue. How does a disparate-impact claim come up under the ADEA?
When companies go through major layoffs, they often try to eliminate people at higher pay levels. The employees who generally hold those positions are age 40 or older. So if these older workers get laid off disproportionately to younger workers, they may make a disparate-impact claim. The issue right now is, does the ADEA recognize a course of action under disparate impact? Last year, the Supreme Court agreed to review a circuit court case filed against Florida Power. It would have been helpful in giving some answers about what ADEA does and does not cover. The issue was: When a layoff occurs and it turns out that older workers were disproportionately terminated, is there a case under the ADEA for disparate impact? Ultimately the Supreme Court decided not to review the case, but the question remains. What has the trend been so far concerning this issue?
Courts have said that even though older people tend to get paid more, job reductions directed at limiting payroll costs are not necessarily [linked to] age discrimination. You can't necessarily make the connection between higher salary and age for purposes of ADEA. But the issue is sitting there, waiting for some final ruling by the Supreme Court as to what it really means. How can HR professionals avoid problems under the ADEA while these issues get sorted out? If you're going to make changes in policies, try to ensure that you have a justifiable business basis for the change before you enact it. So if you're going to try to cut payroll, make sure you have records showing you're making the cut for specific business reasons. This may insulate you against a disparate-impact claim. [It shows that the cuts are part of an overall business plan rather than an attempt to weed out older workers.] As you work with your benefits advisers, you need to be cognizant of the ADEA--that it can and does apply to a wide range of issues.
"Age Discrimination in Employment Act." Wikipedia. 6 Dec. 2005 .
Clark, Margaret M. "Loose lips sank ship - Court Report - age discrimination." HR Magazine June 2003. 6 Dec. 2005 .
Lorber, Larry. Interview. Oct. 2002. 6 Dec. 2005