In House - The FindLaw Corporate Counsel Blog

EEOC Rarely Files Suits for Age Bias

Age, like beauty, is sometimes in the eyes of the beholder.

When 50 is the new 40, it seems like 10 years doesn't really make a difference. But as anyone with arthritis knows, it sure feels like it.

And so it is with age discrimination claims. Sometimes it feels like age is the problem, but really it isn't. According to reports, few age discrimination cases have legs because the problem is the law.

Hard to Prove

The ABA Journal reports that the Equal Employment Opportunity Commission, the federal agency charged with policing employment discrimination, filed only two age discrimination cases last year. That's because they are hard to prove and can be expensive, the Journal said.

Laura McCann, a lawyer with the American Association of Retired People, told the New York Times that Age Discrimination in Employment Act is not what it used to be. Enacted half a century ago, it was watered down by the U.S. Supreme Court in 2009.

In Gross v. FBL Financial Services, Inc., the High Court said that an employee must prove that age discrimination is the prime or motivating reason in an age discrimination claim. It basically left open other ways for employers to fire, lay off, or otherwise weed out older workers, the Times reported.

No Probable Cause

Of course, there is another side to the story.

In the EEOC report, the agency said it received 20,857 age discrimination complaints in 2016. It was slightly more than 2015, but part of a general decline since 2008.

Of all age-based charges, the agency reported that 68.8 percent of the cases had no probable cause. By comparison, the EEOC said that 3.4 percent of all harassment claims presented no probable cause.

Still, the the agency settles most discrimination cases. The agency reportedly collected nearly $350 million in settlements last year, including $88 million based on age discrimination.

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