The Age Discrimination in Employment Act

If you’re considering any reductions in force or making changes to your employee performance evaluation protocols, it’s important to analyze the effect any such changes may have on your older employees. Any changes in employment that have a “disparate impact” on employees over 40 years old put you at risk for violating the Age Discrimination in Employment Act of 1967 (ADEA). If you have any questions concerning age discrimination issues, the employer defense attorneys at Hendrickson & Long, PLLC may be able to help.

The ADEA is a federal law that placed age, i.e. workers of age 40 and older, among the protected classes in the federal statutory framework that prohibits discrimination in employment related decisions. Under federal law you are not allowed to make employment decisions based on a person’s age (if they’re 40 or older), race, color, national origin, religion, sex (including pregnancy, childbirth, and related medical conditions), disability, citizenship status, or genetic information. Additionally, West Virginia prohibits discrimination in employment decisions based on any of the following: age (for those 40 and older), race, color, national origin, religion, sex, physical or mental disability, blindness, AIDS/HIV status, or a person’s off-duty tobacco usage.

The ADEA regulations state that even if your company practice is age-neutral on its face, if it has the indirect effect of harming older workers to a greater degree than younger workers, then your practice violates the ADEA. This is known in employment litigation as “disparate impact” as opposed to “disparate treatment,” which refers to the intentional discrimination against a protected class of workers. The only thing your ADEA plaintiff has to do is show a statistical disparity in the effects of your practice to win, unless you have a defense of the practice.

A common and useful defense against age discrimination claims is the “Reasonable Factors Other than Age” defense. Simply put, it means that your employment practice was based on reasonable factors other than age. See Meacham v. Knolls Atomic Power Laboratory. It’s an affirmative defense, meaning that the burden of proof is on the employer. Federal regulation defines “a reasonable factor other than age” as “a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.”

To show that your factors are “objectively” reasonable, you must show that the “practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”

According to the same regulation, when trying to determine whether your factors are objectively reasonable, you should consider:

  • The extent to which the factor is related to your state’s business purpose;

  • The extent to which you have defined the factor accurately and applied it fairly;

  • The extent to which managers and supervisors were given guidance or training about how to apply the factor so that they avoided discrimination;

  • The extent to which you limited supervisors’ discretion in areas that are subject to negative age-based stereotypes;

  • The extent to which you analyzed beforehand the potential adverse impact your employment practice would have on older workers; and

  • The degree of harm to older workers and the steps you took to mitigate harm.

It’s noteworthy that two years ago, West Virginia’s Supreme Court held that “disparate impact” doesn’t count if the younger parties are also over 40, which is the triggering age of the discrimination law. See Young v. Bellofram Corporation.In other words, you may discriminate all you want in favor of 40 year olds over 60 year olds but you may not discriminate in favor of 20 year olds over those 40 and older.