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Age Discrimination and Employment Law Today

Pursuant to the Age Discrimination in Employment Act (“ADEA” and the “Act”) of 1967, an employer cannot discriminate against employees and job applicants over the age of 40 years old, including in hiring, compensation, and discharge, as a discrimination lawyer  can explain. Like many other civil rights statutes of the time period, it was connected to the Civil Rights Act, which bans many forms of discrimination, such as based on race or sex.

However, after being in place for a little more than fifty years, the Act is somewhat of an endangered species. The federal law has been subjected to court decisions that weaken it by increasing loopholes for employers to avoid violation as well as decreasing the remedies that employees can access under it when employers are found to have violated it. There have always been exceptions, such as the fact that employers can favor younger workers when they can demonstrate that “reasonable factors other than age” were part of their decision-making process in deciding to hire one worker over another. For example, employers could allow something like quick reflexes to be relevant to the job, such as for police or pilots.

What’s Happening Now?

One important element of employment law and the ADEA is class action waivers. A class action is when a large number of people band together to bring a suit that addresses all of their legal needs, and provides rectification therein. The problem is that some employers are imposing class action waivers on workers, making it so that they cannot bring a class action suit against that employer. This inhibits workers from being able to articulate their rights and seek assistance under the law, as a group. The first company to include a waiver like this was D.R. Horton, which is the U.S.’s largest homebuilding company. IBM did too, shortly thereafter.

In response, in 2014 the National Labor Relations Board (“NLRB”) ruled that this was not legal. Three federal appeals courts rejected the NLRB’s decision, while two other appeals courts affirmed it. The issue, thereby, came to be an issue that needed resolution by the Supreme Court. The Trump Administration’s Justice Department does not favor the NLRB on this issue—therefore standing against the rights of workers to bring these class actions and for the employers who want to waive these rights. Oral arguments came last October. Justice Stephen Breyer discussed the importance of these rights, contending that this would disrupt a delicate balance that dates back to the Roosevelt era. Now, the Supreme Court’s decision on the matter could be released very soon. Either way, there has been significant weakening of the ADEA and protections for older workers over the years.

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