Hunton Employment & Labor Perspectives

On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration.  In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.

In an effort to encourage the EEOC to increase ADEA enforcement, participants in the meeting cited various studies evidencing the difficulties faced by older workers in finding and maintaining jobs. A study cited by participant Patrick Button, Assistant Economics Professor at Tulane, shows that two-thirds of workers age 55-64 believe their age is a barrier to employment. In addition, one study cited by Mr. Button revealed that a woman between the age 29-31 was twice as likely to get a callback for an interview than a woman age 64-66 despite their qualifications being identical. The increasing average age of the workforce makes this issue even more critical, with estimates forecasting that the percentage of workers sixty-five and older in workforce will increase from 19% to 29% over the next 40 years.

In light of these statistics, there is evidence that the EEOC may increase ADEA enforcement in an effort to reduce alleged discrimination against older workers in the workplace. In the June 14th meeting, Chairman Lipnic stated that “[o]utdated assumptions about age and work deprive people of economic opportunity and stifle job growth and productivity.” Lipnic has also made statements calling into question certain judicial decisions which have limited the effectiveness of the ADEA, such as the Eleventh Circuit’s decision in Villarreal v. R.J. Reynolds Tobacco Co., which held that age discrimination in hiring claims could not be based on the theory of disparate impact.

With the potential for increased enforcement of the ADEA by the EEOC and the aging of the American workforce, employers would be wise to review their policies in relation to the ADEA.  This would include policies related to recruitment and interviews, flexible work schedules, job training and reasonable accommodations.