The Leadership Conference on Civil and Human Rights

Age

According to 1999 Current Population Survey data from the Census Bureau, 32 million Americans -- 12% of the total population -- are 65 and older; fifty-five million -- 20% of the total population -- are 55 or older. Older Americans have long fought age-based discrimination limiting their participation in the workforce and in public life - including, for example, stereotypes that older workers are less productive, less energetic or creative than their younger counterparts.

Modeled after Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA) was enacted in 1967 and prohibits discrimination in hiring, promotion, assignments, compensation, firing, and working conditions against persons 40 or older. The ADEA was followed by the Age Discrimination Act of 1975, which prohibits age discrimination in areas other than employment by federally funded programs.

In 1993, the Supreme Court issued a key decision interpreted the ADEA in Hazen Paper Co. v. Biggins. This decision cut back protections for older workers under the ADEA, by holding that an adverse employment decision that is based on a factor other than age does not violate the ADEA -- even where the decisionmaking factor is motivated by a factor correlated to age, such as years of service or pension status.

And in a 5-4 decision in Kimel v. Florida Bd of Regents (2000), the Court cut back age discrimination protections for employees of state governments, ruling that the Eleventh Amendment bars state employees from suing their employers in federal court for money damages under the ADEA. The Court based its ruling in part on the majority's conclusion that a state's age discrimination is not necessarily unconstitutional because such age discrimination is not necessarily irrational.

Continuing age discrimination issues include employers' increasing practice of singling out older workers for layoffs and reductions-in-force during times of downsizing. Advocates for older workers are also fighting to establish the availability of disparate impact theory to fight adverse job practices that disproportionately affect older workers. Even though disparate actions have long been recognized under Title VII to address race and sex discrimination, since the Supreme has signaled that it remains an open question as to whether disparate impact theory is available under the ADEA. Finally, the fight against state and local government efforts to set maximum hiring ages and mandatory retirement ages for some jobs continues.