The Equal Employment Opportunity Commission (EEOC) is paying close attention to the issue of age discrimination and to the many challenges facing the Age Discrimination in Employment Act (ADEA) 50 years after its enactment. On June 14, 2017, the EEOC launched its commemoration of the ADEA’s 50th Anniversary during its Commission meeting in Washington D.C. As part of this commemoration, the EEOC is focusing on the state of the ADEA today and the challenges it faces for the future. Among the EEOC’s concerns is the fact that Courts have been taking a narrow view of the ADEA, therefore limiting its impact.

The ADEA makes it illegal for employers to discriminate against workers over the age of 40 because of their age. It was signed into law in December 1967.  According to the EEOC’s acting chair, Victoria Lipnic, ambiguities in the text of the ADEA have led courts to weaken safeguards for older workers relative to workers in other protected groups, including protected groups under Title VII, which prohibits discrimination on the basis of race, sex, religion or national origin. For example, in a recent Eleventh Circuit Court of Appeals (covering Alabama, Georgia, and Florida) decision, the Court ruled that job applicants cannot sue for disparate impact discrimination under ADEA because they are not employees.  Specifically, the Court ruled that an ADEA provision allowing workers to sue over a policy affecting their status as employees applies only to current workers and not applicants.  The court noted that this is in contrast with explicit language in Title VII allowing applicants to sue for disparate impact.  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.

Similarly, a 2009 U.S. Supreme Court decision made it more difficult for workers to prove an ADEA claim than a Title VII claim. The Supreme Court held that workers bringing a claim under the ADEA must show they would not have been hit with an adverse action at work “but for” their age to prove their claim. In contrast, workers alleging a claim under Title VII must only show their protected characteristic was a motivating factor.

These judicial decisions, among others, have led the EEOC to voice concerns that there are barriers to age discrimination claims that do not exist for other types of bias. Although it is too soon to know for sure, the EEOC’s focus on the challenges facing the ADEA may lead to Congressional involvement in addressing the ambiguities in the text of the Act. In light of the growing number of older workers in the work force, changes to the ADEA would have widespread impact.  Employers should, therefore, keep the ADEA on their radar.