Age discrimination in employment is a problem the law seeks to address—specifically with the Age Discrimination in Employment Act (ADEA) from 1967. This seems all well and good, except that recent legal interpretations and assessments of that act have found that it leaves some vulnerabilities.
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In particular, in a recent court case, Gross v. FBL Financial Services, it was decided by the court that the ADEA requires someone claiming age discrimination to show that age was either the only or the most important factor in the negative employment-related decision. This is a higher bar than required for other discrimination claims, which only require the discrimination to be a factor, not a sole factor or primary factor. This also differs from previous ADEA interpretations.
This is where the Protecting Older Workers Against Discrimination Act (POWADA) comes in. This bill has been introduced in both the Senate (S. 485) and the House (H.R. 1230) in February 2019 and does have bipartisan support, but is unclear how it will progress.
According to Iowa Senator Chuck Grassley’s website:
“Enacting POWADA (S. 485) would restore critical Age Discrimination in Employment Act (ADEA) protections and make it easier for employees to prove when they are a victim of age discrimination in the workplace.
In 2009, a U.S. Supreme Court ruling in Gross v. FBL Financial Services involving Iowan Jack Gross, weakened the ADEA by imposing a significantly higher burden of proof on workers alleging age discrimination than is required of workers alleging other forms of workplace discrimination. As a result, workers that allege age discrimination must meet an undue legal burden not faced by workers alleging discrimination based on race, sex, national origin or religion.”[i]
POAWDA, if enacted, would make it clear that age discrimination need only be shown to be a factor, not the sole or deciding factor, for it to be a valid discriminatory case. The ADEA and other related laws would be amended to reflect this. Essentially, it would reverse the supreme court ruling noted above.
With age discrimination being seen or experienced by a large majority of older workers[ii] – despite it being illegal – this could further protect an ever-growing portion of the workforce. In the coming years, an ever-increasing percentage of the workforce will be covered by the ADEA, which covers those individuals aged 40+.
POWADA is just in the early legislative stages and it remains to be seen what will happen if/when it progresses. This is something for HR professionals to be aware of and watch for updates in the future.
Age bias can happen inadvertently or can appear to happen even when it’s not the case. Employers should be aware of this and take steps to ensure they’re not discriminating. They should be sure that everyone involved in making employment-related decisions understands that age discrimination is illegal.
What has your experience been? What steps does your organization take to prevent age discrimination in the workplace today?
[i] https://www.grassley.senate.gov/news/news-releases/grassley-senators-introduce-bipartisan-bill-protect-older-workers-discrimination
[ii] https://www.marketwatch.com/story/this-bipartisan-proposal-aims-to-end-age-discrimination-for-a-graying-workforce-2019-02-15
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.