Is the ADEA Showing its Age?


Is the ADEA Showing its Age?


Hard to believe but we are coming up on the 50th anniversary of the Age Discrimination in Employment Act (“ADEA”)!

The ADA makes it illegal for employers to discriminate against workers over the age of 40 because of their age. This includes things like failure to hire, promote, discipline, or terminate an employee solely on the basis of his or her age. As the baby boomers age and GenX and Y individuals in the workplace age, they face many challenges and a bias solely because of their age and this is likely to continue and become  more common.

The U.S. Equal Employment Opportunity Commission (“EEOC”) is taking a hard line look at cracks and judicial lessening of the protections the ADEA is supposed to afford. For example, it has long been established that applicants can file suit under Title VII of the Civil Rights Act, even if they were not officially “employees”. A recent case in the 11th Circuit (covering Alabama, Florida and Georgia) has rejected the EEOC’s longstanding position that applicants are eligible to sue for discrimination, finding that the ADEA’s reach only applies to current workers and not applicants.

Similarly, in 2009, the U.S. Supreme Court issued a ruling that made it much more difficult for people in the protected age category (those over 40) to bring a claim under the ADEA. These workers must now prove that they would not have suffered an adverse action at work “but for” their age in order to prove their claim. In contrast, workers alleging a claim under Title VII must only show their protected category (race, religion, sex, national origin) was only a  motivating factor in the adverse action.

The EEOC is concerned that decisions like the one from the 11th circuit, or a narrowing of scope by the Supreme Court are reasons that the protections of the ADEA need reexamining. This is especially true in that the ADEA appears to have barriers against discrimination that other laws do not. Title VII of the Civil Rights Act has been amended repeatedly to keep up with changing employment situations. Not so much for the aging ADEA. Enforcement activity is likely to increase given this disparity.

It is far too soon to tell whether or not the new congressional session will lead to involvement in addressing the ambiguities in the ADEA. However, it is safe to say that given the growing number of older workers in the workforce, changes to the ADEA will have a widespread impact. Keep the ADEA on your dashboard and not the rear view mirror!

With over 30 years’ experience in advising employers and employees on cutting edge employment law issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever-changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us at through our website at


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