It’s been 50 years since Congress passed the Age Discrimination in Employment Act (ADEA), and the law has not been amended since 1991. Now that it’s 2017, there is growing evidence the ADEA is not fully protecting the rights of older workers.

Age Discrimination Still a Serious Problem


At a recent public meeting to mark the ADEA’s 50th anniversary, for example, leading researchers and other experts told the Equal Employment Opportunities Commission that “persistent age discrimination and stereotypes…continue to channel older workers out of the workforce.”

Speakers pointed to a 2017 survey by the American Association of Retired Persons (AARP) that showed nearly 66% of workers aged 55-64 believe age has been a factor in not finding employment. A 2015 study from the National Bureau of Economic Research’s Disability Research Center, also mentioned at the meeting, found rampant hiring discrimination against older workers.

A Devastating 2009 Supreme Court Ruling

When analyzing why the ADEA is not protecting older workers the way Congress intended, many point to the 2009 U.S. Supreme Court ruling in Gross vs. FBL Financial Services as a major factor. The original lawsuit was brought by a 54-year-old who claimed he was demoted due to his age after his duties were reassigned to a younger employee.

In a 5-4 ruling, the Supreme Court found in favor of the man’s employer, dismissing his claim. The decision also overturned long-standing precedent followed by many federal appellate courts that placed the burden on employers to prove they have not discriminated against an employee based on age. The majority opinion drafted by Justice Clarence Thomas reversed this, finding that it is up to an employee to prove his or her age was the main factor behind a termination or demotion.

By putting the full burden on employees to prove age discrimination, the Supreme Court effectively undercut many of the provisions of the ADEA. The decision has also made age bias harder to prove.

The Protecting Older Workers Against Discrimination Act

The Supreme Court’s ruling in Gross changed prevailing case law in direct opposition to the ADEA. The only way to remedy this would be through an update to the ADEA or entirely new legislation.

This year, a bipartisan group in the U.S. House of Representatives introduced the Protecting Older Workers Against Discrimination Act. Sponsored by Reps. Bobby Scott, D-Va., and Jim Sensenbrenner, R-Wis., it would essentially reverse the precedent set by the Supreme Court in Gross. If passed, the law would reinstate the “mixed-motive test” that was the previous standard used by the courts before Gross. Under that test, employees would only have to prove age was one of the factors in an employer’s decision to dismiss or demote them. The burden would then fall on the employer to show the action was taken for legitimate business reasons.

Similar bipartisan legislation with the same name has also been introduced in the U.S. Senate by Sens. Bob Casey, D-Pa., Chuck Grassley, R-Iowa, Susan Collins, R-Maine, and Pat Leahy, D-Vt. Both bills have received endorsements from AARP and other advocacy groups.

The Protecting Older Workers Against Discrimination Act is still a long way from becoming law. Its fate is also uncertain given the Republican majorities in both the House and Senate. If Congress wants to be seen as taking discrimination against older workers seriously, however, this legislation would be a good first step.

Age should never be a factor in determining whether someone is hired, promoted or terminated. Congress must act to protect the rights of older workers.

If you feel you have been denied a job or promotion because of how old you are, or have experienced other age-based discrimination, the lawyers in the Sommers Schwartz Employment Litigation Group would be happy to discuss your situation. Please get in touch.

Tad T. Roumayah

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Tad T. Roumayah

Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.