Navigating the Age Discrimination in Employment Act

Are You Over Age 40?

Increasingly baby boomers are now retiring, which means the next generation is stepping into the “over 40” segment of the workforce.

While that is happening now, legislation protecting those new 40-plus employees was put in place 50 years earlier. In commemoration of the 50th anniversary of The Age Discrimination in Employment Act (ADEA), Rich Tonowski from the U.S. Equal Employment Opportunity Commission (EEOC) wrote an article for the July 2017 issue of The Industrial-Organizational Psychologists magazine highlighting the key elements of ADEA.

Particularly interesting is the fact that the ADEA has several components that contrast with other Equal Employment Opportunity statutes, the most important of which is perhaps the mandate that “reverse discrimination” against those under age 40 is lawful. This is not found elsewhere in EEO’s regulations.

What Does This Mean?

For one thing, it makes most actions employers take to avoid discrimination less complicated, notes David Smith, president and CEO of EASI•Consult®. Often, the measure of discrimination is a numbers game.

Take for example, the mandate to avoid race discrimination in employment practices. If a disproportionate number of minorities are screened out from employment opportunities, the employer faces potential legal consequences.

To fix this, companies may fall into the trap of considering a way to lessen the qualifications for under-represented, protected groups. This will “bring the numbers up” and avoid any adverse impact on the protected group.

But that approach has some built-in landmines. What are the hidden dangers? First of all, it’s illegal to set different qualifications for different groups. And even if a company increases its number of successful minority employees, that company best not overcorrect. Doing this is reverse discrimination and is also illegal with racial groups.

Balancing the proportion of workers under age 40 to workers over age 40 workers is less of an issue. It is not required by law, provided the 40-and-up workers are not adversely impacted.

Again, reverse discrimination against those under age 40 is lawful.  Smith does not advocate this, since diversity in age has benefits for almost any organization. But at least employers are not subject to double jeopardy.

Older is Favored

In his article, Tonowski also points out that, even within the age 40+ employee population, discrimination against older members in favor of younger members is also unlawful – favoring a 45-year-old over a 55-year-old, for example. Also important to note here is the courts recognize that some abilities may diminish with advancing age.  Regardless, mandatory retirement rules are “very much restricted,” says Tonowski.

What About Older Applicants?

Until recently, the EEOC held that the ADEA covered age discrimination in hiring practices. But the Eleventh Circuit Court of appeals decision in Villarreal v. R.J. Reynolds Tobacco Co. (Oct. 5, 2016) has clarified that this is not the case.

Specifically, the court ruled that job applicants cannot sue for disparate (adverse) impact discrimination under ADEA because they are not employees. The court noted that this is in contrast with explicit language in Title VII of the 1964 Civil Rights Act that does allow applicants to sue for disparate impact.

As Yesenia Garcia Perez, attorney at Foley and Lardner LLP, points out in Labor and Employment Law Perspectives, the Eleventh Circuit decision rejected the EEOC’s longstanding position that the ADEA allows older job applicants, who feel they have been unfairly passed over because of a hiring policy, to sue.


Many believe that, with the new administration, little will change in this area. However, employers should keep the ADEA on their radar. With the growing number of older workers in the workforce, changes to the ADEA would have widespread impact and the EEOC is paying more attention than ever to this statute.

David Smith, Ph.D., is the president and CEO of EASI•Consult®. EASI•Consult® works with Fortune 500 companies, government   agencies, and mid-sized corporations to provide customized Talent Management solutions. EASI•Consult’s specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI•Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

EASI·Consult® is the registered name for Expert Advocates in Selection International, LLC.
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