The U.S. Equal Employment Opportunity Commission (EEOC) held a public hearing on July 15 to review recent developments under the Age Discrimination in Employment Act (ADEA). The panel discussed the effects of widespread layoffs, threats to employee benefits, and controversial recent court decisions on older workers. The panelists testified in detail about the damaging effect of age stereotyping and recent judicial decisions that have curtailed older workers’ ability to challenge age discrimination, citing Kentucky Retirement Systems v. EEOC and Gross v. FBL Financial Services, Inc., as examples.
The experts also proposed – and urged – a variety of potential enforcement and policy solutions to counteract adverse judicial decisions, such as:
- issuing regulations to fully define the components and burdens of pleading and proof of the reasonable-factor-other-than-age defense in the ADEA;
- developing policy guidance to make uniform the relevance and weight of ageist comments; and
- using the EEOC’s rulemaking authority under the ADEA to clarify the factors announced by the Supreme Court in Kentucky Retirement.
The panel asserted that legislative action was essential to ensure that the ADEA is a meaningful enforcement tool. EEOC commissioners pledged to consider the panelists’ suggestions and take steps to provide additional regulatory and policy guidance.
Putting a human face on the problem, plaintiffs from recent ADEA cases also testified at the hearing. John Stannard, a plaintiff in Meacham v. KAPL, testified that he believed he was selected for layoff because of “the false stereotype which characterizes older workers as less flexible and critical.” Losing his job after 27 years of excellent work, Stannard said, he found himself “in desperate need of money, [and] took the only job readily available, which was a janitor position at KAPL. I was cleaning the wastebaskets of my former colleagues. . . . I was very humiliated.”
“Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination,” said Acting EEOC Chairman Stuart Ishimaru. “Employers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations. As a result, older workers may be disproportionately selected for layoffs during reductions-in-force. To then make matters worse, evidence suggests that older workers who lose their jobs may have more difficulty finding another job than their younger counterparts, due to age discrimination.”
These conclusions were substantiated at the hearing by the testimony of a variety of experts in age discrimination law and policy. Ishimaru said witnesses’ experiences demonstrated “first and foremost, the devastating impact that age discrimination can have on a person. What’s more, their experiences underscore that age discrimination is an equal opportunity plague. It is not limited to members of a particular class or a particular race. It is not limited to particular industries or particular regions. And it is not limited to a particular gender.”
The EEOC recently issued a technical assistance document on waivers as part of severance agreements. The document explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims. The EEOC issued the document following a significant spike in age discrimination charges and amid increased layoffs involving waivers of rights. The document is posted on the EEOC’s website at www.eeoc.gov/policy/docs/qanda_severance-agreements.html.