THE AGE DISCRIMINATION
WHAT IS THE AGE DISCRIMINATION?
Age discrimination can take many forms. It can include an employer refusing to hire older workers in the first place, or firing employees once they reach a certain age. It involves treating an applicant or employee less favorably because of their age. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people who are age 40 or older but does not include workers under the age of 40. However, it is not illegal for an employer to favor an older worker over a younger one, even if both workers are age 40 or older. Discrimination may also occur when the victim and the person who inflicted the discrimination are both over 40. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment(U.S. Equal Employment Opportunity Commission, Age discrimination).
COVERAGE OF THE ACT
Depending on the type of employer and the kind of discrimination alleged, the coverage requirements for private employers, the States and local governments, the Federal government agencies, employment agencies, and the Labor unions or Joint Apprenticeship Committees. If an employer is included in the list of the required number of employees, the employee, the job applicant, the former employee, the applicant, and the participant in a training or apprenticeship program are protected by the anti-discrimination laws. Moreover, American workers employed by U.S. companies overseas are also protected by the anti-discrimination laws.
APPROPRIATE SITUATION TO DISCRIMINATE BASED ON AGE
Is it ever appropriate to discriminate based on age? Yes, sometimes, many hiring decisions are based on age. But, it depends on the circumstances and it has to be very careful and fair. These circumstances must be based on reasonable factors. Normally, employers are not allowed to purely consider an applicant's age when making hiring decisions. However, there are limited exceptions to this rule. For instance, a film Company may decide to hire an aged man to play Ichirō Yashida in The Wolverine or a young lady to play Beth Harmon in The Queen's Gambit. Some age discrimination was even in the federal regulations. An airline company cannot hire a 65-year-old applicant for a commercial passenger pilot job simply because the U.S. Federal Aviation Administration imposes a mandatory retirement age of 65 for these positions.
INAPPROPRIATE SITUATION TO DISCRIMINATE BASED ON AGE
Federal law does not prohibit employers from asking an applicant's age or date of birth. However, employers should ensure that they ask about age only for a lawful purpose. As we know that, in general, companies can not consider an applicant's age when making hiring decisions. Most employers often assume that an older candidate is less healthy than a younger candidate, believing older workers are less healthy in general or even less productive and less innovative. However, it is just a bias and discrimination. For instance, is a CEO like Elon Musk less productive and less innovative than young people because he is over 50? The answer is absolutely not. Suppose you are in your 40s and try to work for STARBUCKS as a barista, can STARBUCKS refuse to hire you purely based on your age? No. However, the interviewer may require you to pass a test associated with the position that can be difficult for you to legally and implicitly deny your claim.
OLDER PEOPLE ARE PROTECTED AS A CLASS?
Race and color were the earliest protected classes, according to The Civil Rights Act of 1866, Section 1981 of the Act barred discrimination in the making of contracts on the basis of race and color, which is understood to include employment contracts. So, when does a person fall into a protected class that the law recognizes? Under federal law, employers cannot discriminate on the basis of race, color, national origin, religion, sex, age, or disability. Therefore, employers may consider membership in a protected class when making employment decisions if there is a business necessity for doing so, or if membership in a protected class is a bona fide occupational qualification. Under the law, the protected class for age is people aged 40 and older, not "older people".
HOW THE LAWS PROTECTING OLDER PEOPLE FROM DISCRIMINATION WORK?
In the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs. Moreover, the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons(U.S. Equal Employment Opportunity Commission, Age discrimination). The purpose of such Acts is to promote employment of older persons based on their ability rather than age and to prohibit arbitrary age discrimination in employment. It also helps employers and workers find ways of meeting problems arising from the impact of age on employment.
In the employer practices, it is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual concerning his compensation, terms, conditions, or privileges of employment, because of age. To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age are also prohibited.
In the labor organization practices, it is unlawful for a labor organization to exclude its membership, or otherwise to discriminate against, any individual because of his age. And, to limit, segregate, or classify its membership, or refuse to hire any individual and tend to deprive any individual of employment opportunities because of such individual's age are all prohibited. In addition, attempt to cause an employer to discriminate against an individual in violation of this section is also an unlawful practice. Employment agencies to cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any referral for employment by such a labor organization based on age are strictly prohibited.
Additionally, it is also unlawful for any employment agency or labor organization to take any action otherwise prohibited where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. Such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located and permit the involuntary retirement of any individual specified by the age.
In the practices of foreign corporations controlled by American employers, employee pension benefit plans, distribution of benefits after attainment of normal retirement age, it shall be unlawful for an employer, an employment agency to establish or maintain an employee pension benefit plan which requires or permits in the case of a defined benefit plan, the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual, because of age.
In the case of any employee who, as of the end of any plan year under a defined benefit plan, has attained normal retirement age under such plan if distribution of benefits under such plan with respect to such employee has commenced as of the end of such plan year, then any requirement of this subsection for continued accrual of benefits under such plan associate with such employee during such plan year shall be treated as satisfied to the extent of the actuarial equivalent of in-service distribution of benefits.
Finally, whoever shall forcibly resist, oppose, impede, intimidate or interfere with a duly authorized representative of the Equal Employment Opportunity Commission while it is engaged in the performance of duties under this chapter shall be punished by a fine of not more than $500 or by imprisonment for not more than one year, or by both: Provided, however, That no person shall be imprisoned under this section except when there has been a prior conviction hereunder. In the case of an alleged unlawful practice occurring in a State which has a law banning discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based.
REFERENCE
U.S. Equal Employment Opportunity Commission (Ed.). (n.d.). Age discrimination. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/age-discrimination
U.S. Equal Employment Opportunity Commission (Ed.). (n.d.). Hiring decisions based on age. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/employers/small-business/hiring-decisions-based-age
U.S. Equal Employment Opportunity Commission. (n.d.). Coverage. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/employers/coverage-0
U.S. Equal Employment Opportunity Commission. (n.d.). The age discrimination in employment act of 1967. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/statutes/age-discrimination-employment-act-1967
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