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Age Discrimination Law at 50: Older and Wiser?

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By William Vogeler, Esq. on March 21, 2017 11:56 AM

Age discrimination stories are not trending, like stories about discrimination based on gender, nationality, or religion these days. After all, President Trump has not banned immigrants, denigrated judges, or changed policies toward student bathrooms based on their ages. However, we are less than 100 days into his administration ...

Meanwhile, it has been 50 years since age discrimination laws took hold in the United States. The Age Discrimination in Employment Act passed in 1967, along with other legislation designed to improve civil rights and to help older Americans in the Kennedy-Johnson era.

Some say age discrimination is not as overt as it was a generation ago, but it still exits largely off the books. That's because the law has changed and many older workers just don't file formal complaints anymore.

Lay-Offs Then and Now

According to a Forbes review of age discrimination last month, older employees are not as vulnerable to lay-offs as they were before the ADEA became law. Employers -- especially large companies that do routine lay-offs -- rarely "engage in that kind of over discrimination anymore."

Designed to protect workers between 40 and 65, the ADEA ended mandatory retirement practices. But some employers still target older workers, and proving age discrimination has actually become more difficult since then.

In 2009, the U.S. Supreme Court said that an employee must prove age was the primary factor for discrimination in employment. An employer may terminate an older worker lawfully if age was only one factor, the court said.

Edward Ellis, a lawyer at Littler Mendelson, says today an employee has to prove that most of the people who were laid off were older. He says it is tough to prove based on "reasonable factors."

If fired, it is not enough for an employee to show he or she was replaced by a younger worker. The employer will be liable only if the termination was based on age.

An Aging, Silent Majority

Richard Nixon coined the phrase "silent majority" to capture votes in his 1969 election bid. Today, it refers to any large group that generally doesn't speak up.

So it can be said of the workers today who were alive then. Age discrimination complaints have dropped almost 20 percent in the last decade. Most older workers -- especially as they qualify for Social Security benefits -- don't fight it because it is not worth the time or expense.

Studies show that one in three older workers has either experienced or witnessed age discrimination at work. Also, courts are beginning to recognize age discrimination in subgroups, such as discrimination against 50-year-olds.

Chloe Roberts, a lawyer with Roberts & Associates, said the Equal Employment Opportunity Commission has doubled the size of its age discrimination awards in recent years. However, she predicted older works will still have challenges pursuing age discrimination claims.

"Although the ADEA has been in existence for over 50 years, evidence suggests that its enforcement and effectiveness has been mostly illusory," she said.

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