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Green Party Elders Workshop: Elders Issues You Need to Know About

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Green Party Elders Workshop: Elders Issues You Need to Know About

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There are numerous vulnerabilities, inequities, and abuses that elders are subject to in our society. The panel, facilitated by Tim McKee, will address these issues as they affect older people:

Jim Becklund: Housing, cost of living, health

Mary Sanders: Food insecurity, including logistics

Holly Hart/Guest Expert: Medicare

Materials

Common Factors that Drive Poverty | State of Senior Hunger in 2020 | Demographics of Senior Hunger in 2020 | Geography of Senior Hunger in 2020 | Which Seniors are Food Insecure | Senior Hunger – Impact on Health | SNAP Benefits

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The global population aged 60 years or over numbered 962 million in 2017, more than twice as large as in 1980 when there were 382 million older persons worldwide. The number of older persons is expected to double again by 2050, when it is projected to reach nearly 2.1 billion.

As the average age of populations continues to rise, Governments should implement policies to address the needs and interests of older persons, including those related to housing, employment, health care, social protection, and other forms of intergenerational solidarity. By anticipating this demographic shift, countries can proactively enact policies to adapt to an ageing population, which will be essential
to fulfill the pledge of the 2030 Agenda for Sustainable Development that “no one will be left behind”.

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The Age Discrimination in Employment Act of 1967 (ADEA)

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The Age Discrimination in Employment Act of 1967 (ADEA)

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“The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination.”

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EDITOR'S NOTE: The following is the text of the Age Discrimination in Employment Act of 1967 (Pub. L. 90-202) (ADEA), as amended, as it appears in volume 29 of the United States Code, beginning at section 621. The ADEA prohibits employment discrimination against persons 40 years of age or older. The Older Workers Benefit Protection Act (Pub. L. 101-433) amended several sections of the ADEA. In addition, section 115 of the Civil Rights Act of 1991 (P.L. 102-166) amended section 7(e) of the ADEA (29 U. S.C. 626(e)). Cross references to the ADEA as enacted appear in italics following each section heading. Editor's notes also appear in italics.
An Act

To prohibit age discrimination in employment.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that this Act may be cited as the "Age Discrimination in Employment Act of 1967."

* * *

CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE

SEC. 621. [Section 2]

(a) The Congress hereby finds and declares that-

(1) 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;

(2) 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;

(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

EDUCATION AND RESEARCH PROGRAM; RECOMMENDATION TO CONGRESS

SEC. 622. [Section 3]

(a) The EEOC [originally, the Secretary of Labor] shall undertake studies and provide information to labor unions, management, and the general public concerning the needs and abilities of older workers, and their potentials for continued employment and contribution to the economy. In order to achieve the purposes of this chapter, the EEOC [originally, the Secretary of Labor] shall carry on a continuing program of education and information, under which he may, among other measures-

(1) undertake research, and promote research, with a view to reducing barriers to the employment of older persons, and the promotion of measures for utilizing their skills;

(2) publish and otherwise make available to employers, professional societies, the various media of communication, and other interested persons the findings of studies and other materials for the promotion of employment;

(3) foster through the public employment service system and through cooperative effort the development of facilities of public and private agencies for expanding the opportunities and potentials of older persons;

(4) sponsor and assist State and community informational and educational programs.

(b) Not later than six months after the effective date of this chapter, the Secretary shall recommend to the Congress any measures he may deem desirable to change the lower or upper age limits set forth in section 631 of this title [section 12].

PROHIBITION OF AGE DISCRIMINATION

SEC. 623. [Section 4]

(a) Employer practices

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) 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; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age.

(c) Labor organization practices

It shall be unlawful for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age;

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) Opposition to unlawful practices; participation in investigations, proceedings, or litigation

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

(e) Printing or publication of notice or advertisement indicating preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

(f) Lawful practices; age an occupational qualification; other reasonable factors; laws of foreign workplace; seniority system; employee benefit plans; discharge or discipline for good cause

It shall not be unlawful for an employer, employment agency, or labor organization-

(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where 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;

(2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section-

(A) to observe the terms of a bona fide seniority system that is not intended to evade the purposes of this chapter, except that no such seniority system shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual; or

(B) to observe the terms of a bona fide employee benefit plan-

(i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, as permissible under section 1625.10, title 29, Code of Federal Regulations (as in effect on June 22, 1989); or

(ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter.

Notwithstanding clause (i) or (ii) of subparagraph (B), no such employee benefit plan or voluntary early retirement incentive plan shall excuse the failure to hire any individual, and no such employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title, because of the age of such individual. An employer, employment agency, or labor organization acting under subparagraph (A), or under clause (i) or (ii) of subparagraph (B), shall have the burden of proving that such actions are lawful in any civil enforcement proceeding brought under this chapter; or

(3) to discharge or otherwise discipline an individual for good cause.

(g) [Repealed]

(h) Practices of foreign corporations controlled by American employers; foreign employers not controlled by American employers; factors determining control

(1) If an employer controls a corporation whose place of incorporation is in a foreign country, any practice by such corporation prohibited under this section shall be presumed to be such practice by such employer.

(2) The prohibitions of this section shall not apply where the employer is a foreign person not controlled by an American employer.

(3) For the purpose of this subsection the determination of whether an employer controls a corporation shall be based upon the-

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations, and

(D) common ownership or financial control,

of the employer and the corporation.

(i) Employee pension benefit plans; cessation or reduction of benefit accrual or of allocation to employee account; distribution of benefits after attainment of normal retirement age; compliance; highly compensated employees

(1) Except as otherwise provided in this subsection, it shall be unlawful for an employer, an employment agency, a labor organization, or any combination thereof to establish or maintain an employee pension benefit plan which requires or permits-

(A) 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, or

(B) in the case of a defined contribution plan, the cessation of allocations to an employee's account, or the reduction of the rate at which amounts are allocated to an employee's account, because of age.

(2) Nothing in this section shall be construed to prohibit an employer, employment agency, or labor organization from observing any provision of an employee pension benefit plan to the extent that such provision imposes (without regard to age) a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or years of participation which are taken into account for purposes of determining benefit accrual under the plan.

(3) 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-

(A) 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 with respect to such employee during such plan year shall be treated as satisfied to the extent of the actuarial equivalent of in-service distribution of benefits, and

(B) if distribution of benefits under such plan with respect to such employee has not commenced as of the end of such year in accordance with section 1056(a)(3) of this title [section 206(a)(3) of the Employee Retirement Income Security Act of 1974] and section 401(a)(14)(C) of Title 26 [the Internal Revenue Code of 1986], and the payment of benefits under such plan with respect to such employee is not suspended during such plan year pursuant to section 1053(a)(3)(B) of this title or section 411(a)(3)(B) of Title 26 [the Internal Revenue Code of 1986], then any requirement of this subsection for continued accrual of benefits under such plan with respect to such employee during such plan year shall be treated as satisfied to the extent of any adjustment in the benefit payable under the plan during such plan year attributable to the delay in the distribution of benefits after the attainment of normal retirement age.

The provisions of this paragraph shall apply in accordance with regulations of the Secretary of the Treasury. Such regulations shall provide for the application of the preceding provisions of this paragraph to all employee pension benefit plans subject to this subsection and may provide for the application of such provisions, in the case of any such employee, with respect to any period of time within a plan year.

(4) Compliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.

(5) Paragraph (1) shall not apply with respect to any employee who is a highly compensated employee (within the meaning of section 414(q) of Title 26 [the Internal Revenue Code of 1986]) to the extent provided in regulations prescribed by the Secretary of the Treasury for purposes of precluding discrimination in favor of highly compensated employees within the meaning of subchapter D of chapter 1 of Title 26 [the Internal Revenue Code of 1986].

(6) A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the subsidized portion of any early retirement benefit is disregarded in determining benefit accruals or it is a plan permitted by subsection (m) of this section.

(7) Any regulations prescribed by the Secretary of the Treasury pursuant to clause (v) of section 411(b)(1)(H) of Title 26 [the Internal Revenue Code of 1986] and subparagraphs (C) and (D), of section 411(b)(2) of Title 26 [the Internal Revenue Code of 1986] shall apply with respect to the requirements of this subsection in the same manner and to the same extent as such regulations apply with respect to the requirements of such sections 411(b)(1)(H) and 411(b)(2).

(8) A plan shall not be treated as failing to meet the requirements of this section solely because such plan provides a normal retirement age described in section 1002(24)(B) [section 2(24)(B) of the Employee Retirement Income Security Act of 1974] of this title and section 411(a)(8)(B) of Title 26 [the Internal Revenue Code of 1986].

(9) For purposes of this subsection-

(A) The terms "employee pension benefit plan", "defined benefit plan", "defined contribution plan", and "normal retirement age" have the meanings provided such terms in section 1002 of this title [section 3 of the Employee Retirement Income Security Act of 1974].

(B) The term "compensation" has the meaning provided by section 414(s) of Title 26 [the Internal Revenue Code of 1986].

(10) Special rules relating to age

(A) Comparison to similarly situated younger individual

(i) In general-A plan shall not be treated as failing to meet the requirements of paragraph (1) if a participant's accrued benefit, as determined as of any date under the terms of the plan, would be equal to or greater than that of any similarly situated, younger individual who is or could be a participant.

(ii) Similarly situated-For purposes of this subparagraph, a participant is similarly situated to any other individual if such participant is identical to such other individual in every respect (including period of service, compensation, position, date of hire, work history, and any other respect) except for age.

(iii) Disregard of subsidized early retirement benefits-In determining the accrued benefit as of any date for purposes of this clause, the subsidized portion of any early retirement benefit or retirement-type subsidy shall be disregarded.

(iv) Accrued benefit-For purposes of this subparagraph, the accrued benefit may, under the terms of the plan, be expressed as an annuity payable at normal retirement age, the balance of a hypothetical account, or the current value of the accumulated percentage of the employee's final average compensation.

(B) Applicable defined benefit plans

(i) Interest credits

(I)

In general-An applicable defined benefit plan shall be treated as failing to meet the requirements of paragraph (1) unless the terms of the plan provide that any interest credit (or an equivalent amount) for any plan year shall be at a rate which is not greater than a market rate of return. A plan shall not be treated as failing to meet the requirements of this subclause merely because the plan provides for a reasonable minimum guaranteed rate of return or for a rate of return that is equal to the greater of a fixed or variable rate of return

(II)

Preservation of capital-An interest credit (or an equivalent amount) of less than zero shall in no event result in the account balance or similar amount being less than the aggregate amount of contributions credited to the account.

(III)

Market rate of return-The Secretary of the Treasury may provide by regulation for rules governing the calculation of a market rate of return for purposes of subclause (I) and for permissible methods of crediting interest to the account (including fixed or variable interest rates) resulting in effective rates of return meeting the requirements of subclause (I). In the case of a governmental plan (as defined in the first sentence of section 414(d) of Title 26 [the Internal Revenue Code of 1986], a rate of return or a method of crediting interest established pursuant to any provision of Federal, State, or local law (including any administrative rule or policy adopted in accordance with any such law) shall be treated as a market rate of return for purposes of subclause (I) and a permissible method of crediting interest for purposes of meeting the requirements of subclause (I), except that this sentence shall only apply to a rate of return or method of crediting interest if such rate or method does not violate any other requirement of this chapter.

(ii)

Special rule for plan conversions-If, after June 29, 2005, an applicable plan amendment is adopted, the plan shall be treated as failing to meet the requirements of paragraph (1)(H) unless the requirements of clause (iii) are met with respect to each individual who was a participant in the plan immediately before the adoption of the amendment.

(iii) Rate of benefit accrual-Subject to clause (iv), the requirements of this clause are met with respect to any participant if the accrued benefit of the participant under the terms of the plan as in effect after the amendment is not less than the sum of-

(I) the participant's accrued benefit for years of service before the effective date of the amendment, determined under the terms of the plan as in effect before the amendment, plus

(II) the participant's accrued benefit for years of service after the effective date of the amendment, determined under the terms of the plan as in effect after the amendment.

(iv) Special rules for early retirement subsidies-For purposes of clause (iii)(I), the plan shall credit the accumulation account or similar amount with the amount of any early retirement benefit or retirement-type subsidy for the plan year in which the participant retires if, as of such time, the participant has met the age, years of service, and other requirements under the plan for entitlement to such benefit or subsidy.

(v) Applicable plan amendment-For purposes of this subparagraph-

(I) In general-The term "applicable plan amendment" means an amendment to a defined benefit plan which has the effect of converting the plan to an applicable defined benefit plan.

(II) Special rule for coordinated benefits-If the benefits of 2 or more defined benefit plans established or maintained by an employer are coordinated in such a manner as to have the effect of the adoption of an amendment described in subclause (I), the sponsor of the defined benefit plan or plans providing for such coordination shall be treated as having adopted such a plan amendment as of the date such coordination begins.

(III) Multiple amendments-The Secretary of the Treasury shall issue regulations to prevent the avoidance of the purposes of this subparagraph through the use of 2 or more plan amendments rather than a single amendment.

(IV) Applicable defined benefit plan-For purposes of this subparagraph, the term "applicable defined benefit plan" has the meaning given such term by section 1053(f)(3) of this title [section 203(f)(3) of the Employee Retirement Income Security Act of 1974].

(vi) Termination requirements-An applicable defined benefit plan shall not be treated as meeting the requirements of clause (i) unless the plan provides that, upon the termination of the plan-

(I) if the interest credit rate (or an equivalent amount) under the plan is a variable rate, the rate of interest used to determine accrued benefits under the plan shall be equal to the average of the rates of interest used under the plan during the 5-year period ending on the termination date, and

(II) the interest rate and mortality table used to determine the amount of any benefit under the plan payable in the form of an annuity payable at normal retirement age shall be the rate and table specified under the plan for such purpose as of the termination date, except that if such interest rate is a variable rate, the interest rate shall be determined under the rules of subclause (I).

(C) Certain offsets permitted-A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the plan provides offsets against benefits under the plan to the extent such offsets are allowable in applying the requirements of section 401(a) of Title 26 [the Internal Revenue Code of 1986].

(D) Permitted disparities in plan contributions or benefits-A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the plan provides a disparity in contributions or benefits with respect to which the requirements of section 401(l) of Title 26 [the Internal Revenue Code of 1986] are met.

(E) Indexing permitted-

(i) In general-A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the plan provides for indexing of accrued benefits under the plan.

(ii) Protection against loss-Except in the case of any benefit provided in the form of a variable annuity, clause (i) shall not apply with respect to any indexing which results in an accrued benefit less than the accrued benefit determined without regard to such indexing.

(iii) Indexing-For purposes of this subparagraph, the term "indexing" means, in connection with an accrued benefit, the periodic adjustment of the accrued benefit by means of the application of a recognized investment index or methodology.

(F) Early retirement benefit or retirement-type subsidy-For purposes of this paragraph, the terms "early retirement benefit" and "retirement-type subsidy" have the meaning given such terms in section 1053(g)(2)(A) of this title [section 203(g)(2)(A) of the Employee Retirement Income Security Act of 1974].

(G) Benefit accrued to date-For purposes of this paragraph, any reference to the accrued benefit shall be a reference to such benefit accrued to date.

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken-

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained-

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or

(B) (i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or

(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of-

(I) the age of retirement in effect on the date of such discharge under such law; and

(II) age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

(k) Seniority system or employee benefit plan; compliance

A seniority system or employee benefit plan shall comply with this chapter regardless of the date of adoption of such system or plan.

(l) Lawful practices; minimum age as condition of eligibility for retirement benefits; deductions from severance pay; reduction of long-term disability benefits

Notwithstanding clause (i) or (ii) of subsection (f)(2)(B) of this section-

(i) an employee pension benefit plan (as defined in section 1002(2) of this title [section 2(2) of the Employee Retirement Income Security Act of 1974]) provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits; or

(ii) a defined benefit plan (as defined in section 1002(35) of this title [section 2(35) of the Employee Retirement Income Security Act]) provides for-

(I) payments that constitute the subsidized portion of an early retirement benefit; or

(II) social security supplements for plan participants that commence before the age and terminate at the age (specified by the plan) when participants are eligible to receive reduced or unreduced old-age insurance benefits under title II of the Social Security Act (42 U.S.C. 401 et seq.), and that do not exceed such old-age insurance benefits.

(B) A voluntary early retirement incentive plan that-

(i) is maintained by-

(I) a local educational agency (as defined in section 7801 of Title 20 [the Elementary and Secondary Education Act of 1965], or

(II) an education association which principally represents employees of 1 or more agencies described in subclause (I) and which is described in section 501(c) (5) or (6) of Title 26 [the Internal Revenue Code of 1986] and exempt from taxation under section 501(a) of Title 26 [the Internal Revenue Code of 1986], and

(ii) makes payments or supplements described in subclauses (I) and (II) of subparagraph (A)(ii) in coordination with a defined benefit plan (as so defined) maintained by an eligible employer described in section 457(e)(1) (A) of Title 26 [the Internal Revenue Code of 1986] or by an education association described in clause (i)(II),

shall be treated solely for purposes of subparagraph (A)(ii) as if it were a part of the defined benefit plan with respect to such payments or supplements. Payments or supplements under such a voluntary early retirement incentive plan shall not constitute severance pay for purposes of paragraph (2).

(i) the value of any retiree health benefits received by an individual eligible for an immediate pension;

(ii) the value of any additional pension benefits that are made available solely as a result of the contingent event unrelated to age and following which the individual is eligible for not less than an immediate and unreduced pension; or

(iii) the values described in both clauses (i) and (ii); are deducted from severance pay made available as a result of the contingent event unrelated to age.

(B) For an individual who receives immediate pension benefits that are actuarially reduced under subparagraph (A)(i), the amount of the deduction available pursuant to subparagraph (A)(i) shall be reduced by the same percentage as the reduction in the pension benefits.

(C) For purposes of this paragraph, severance pay shall include that portion of supplemental unemployment compensation benefits (as described in section 501(c)(17) of Title 26 [the Internal Revenue Code of 1986]) that-

(i) constitutes additional benefits of up to 52 weeks;

(ii) has the primary purpose and effect of continuing benefits until an individual becomes eligible for an immediate and unreduced pension; and

(iii) is discontinued once the individual becomes eligible for an immediate and unreduced pension.

(D) For purposes of this paragraph and solely in order to make the deduction authorized under this paragraph, the term "retiree health benefits'' means benefits provided pursuant to a group health plan covering retirees, for which (determined as of the contingent event unrelated to age)-

(i) the package of benefits provided by the employer for the retirees who are below age 65 is at least comparable to benefits provided under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);

(ii) the package of benefits provided by the employer for the retirees who are age 65 and above is at least comparable to that offered under a plan that provides a benefit package with one-fourth the value of benefits provided under title XVIII of such Act; or

(iii) the package of benefits provided by the employer is as described in clauses (i) and (ii).

(E)

(i) If the obligation of the employer to provide retiree health benefits is of limited duration, the value for each individual shall be calculated at a rate of $3,000 per year for benefit years before age 65, and $750 per year for benefit years beginning at age 65 and above.

(ii) If the obligation of the employer to provide retiree health benefits is of unlimited duration, the value for each individual shall be calculated at a rate of $48,000 for individuals below age 65, and $24,000 for individuals age 65 and above.

(iii) The values described in clauses (i) and (ii) shall be calculated based on the age of the individual as of the date of the contingent event unrelated to age. The values are effective on October 16, 1990, and shall be adjusted on an annual basis, with respect to a contingent event that occurs subsequent to the first year after October 16, 1990, based on the medical component of the Consumer Price Index for all-urban consumers published by the Department of Labor.

(iv) If an individual is required to pay a premium for retiree health benefits, the value calculated pursuant to this subparagraph shall be reduced by whatever percentage of the overall premium the individual is required to pay.

(F) If an employer that has implemented a deduction pursuant to subparagraph (A) fails to fulfill the obligation described in subparagraph (E), any aggrieved individual may bring an action for specific performance of the obligation described in subparagraph (E). The relief shall be in addition to any other remedies provided under Federal or State law.

(3) It shall not be a violation of subsection (a), (b), (c), or (e) of this section solely because an employer provides a bona fide employee benefit plan or plans under which long-term disability benefits received by an individual are reduced by any pension benefits (other than those attributable to employee contributions)-

(A) paid to the individual that the individual voluntarily elects to receive; or

(B) for which an individual who has attained the later of age 62 or normal retirement age is eligible.

(m) Voluntary retirement incentive plans

Notwithstanding subsection (f)(2)(b) of this section, it shall not be a violation of subsection (a), (b), (c), or (e) of this section solely because a plan of an institution of higher education (as defined in section 1001 of Title 20 [the Higher Education Act of 1965]) offers employees who are serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) supplemental benefits upon voluntary retirement that are reduced or eliminated on the basis of age, if-

(1) such institution does not implement with respect to such employees any age-based reduction or cessation of benefits that are not such supplemental benefits, except as permitted by other provisions of this chapter;

(2) such supplemental benefits are in addition to any retirement or severance benefits which have been offered generally to employees serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure), independent of any early retirement or exit-incentive plan, within the preceding 365 days; and

(3) any employee who attains the minimum age and satisfies all non-age-based conditions for receiving a benefit under the plan has an opportunity lasting not less than 180 days to elect to retire and to receive the maximum benefit that could then be elected by a younger but otherwise similarly situated employee, and the plan does not require retirement to occur sooner than 180 days after such election.

STUDY BY SECRETARY OF LABOR; REPORTS TO PRESIDENT AND CONGRESS; SCOPE OF STUDY; IMPLEMENTATION OF STUDY; TRANSMITTAL DATE OF REPORTS

SEC. 624. [Section 5]

(a)

(1) The EEOC [originally, the Secretary of Labor] is directed to undertake an appropriate study of institutional and other arrangements giving rise to involuntary retirement, and report his findings and any appropriate legislative recommendations to the President and to the Congress. Such study shall include-

(A) an examination of the effect of the amendment made by section 3(a) of the Age Discrimination in Employment Act Amendments of 1978 in raising the upper age limitation established by section 631(a) of this title [section 1(a)] to 70 years of age;

(B) a determination of the feasibility of eliminating such limitation;

(C) a determination of the feasibility of raising such limitation above 70 years of age; and

(D) an examination of the effect of the exemption contained in section 631(c) of this title [section 1(c)], relating to certain executive employees, and the exemption contained in section 631(d) of this title [section 1(d)], relating to tenured teaching personnel.

(2) The EEOC [originally, the Secretary of Labor] may undertake the study required by paragraph (1) of this subsection directly or by contract or other arrangement.

(b) The report required by subsection (a) of this section shall be transmitted to the President and to the Congress as an interim report not later than January 1, 1981, and in final form not later than January 1, 1982.

Transfer of Functions [All functions relating to age discrimination administration and enforcement vested by Section 6 in the Secretary of Labor or the Civil Service Commission were transferred to the Equal Employment Opportunity Commission effective January 1, 1979 under the President's Reorganization Plan No. 1.]

ADMINISTRATION

SEC. 625. [Section 6]

The EEOC [originally, the Secretary of Labor] shall have the power-

(a) Delegation of functions; appointment of personnel; technical assistance

to make delegations, to appoint such agents and employees, and to pay for technical assistance on a fee for service basis, as he deems necessary to assist him in the performance of his functions under this chapter;

(b) Cooperation with other agencies, employers, labor organizations, and employment agencies

to cooperate with regional, State, local, and other agencies, and to cooperate with and furnish technical assistance to employers, labor organizations, and employment agencies to aid in effectuating the purposes of this chapter.

RECORDKEEPING, INVESTIGATION, AND ENFORCEMENT

SEC. 626. [Section 7]

(a) Attendance of witnesses; investigations, inspections, records, and homework regulations

The Equal Employment Opportunity Commission shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of this chapter in accordance with the powers and procedures provided in sections 209 and 211 of this title [sections 9 and 11 of the Fair Labor Standards Act of 1938, as amended].

(b) Enforcement; prohibition of age discrimination under fair labor standards; unpaid minimum wages and unpaid overtime compensation; liquidated damages; judicial relief; conciliation, conference, and persuasion

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title [sections 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended], and subsection (c) of this section. Any act prohibited under section 623 of this title [section 4] shall be deemed to be a prohibited act under section 215 of this title [section 15 of the Fair Labor Standards Act of 1938, as amended]. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title [sections 16 and 17 of the Fair Labor Standards Act of 1938, as amended]: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. Before instituting any action under this section, the Equal Employment Opportunity Commission shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

(c) Civil actions; persons aggrieved; jurisdiction; judicial relief; termination of individual action upon commencement of action by Commission; jury trial

(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter.

(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action.

(d)(1) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed-

(A) within 180 days after the alleged unlawful practice occurred; or

(B) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

(2) Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(e) Reliance on administrative rulings; notice of dismissal or termination; civil action after receipt of notice

Section 259 of this title [section 10 of the Portal to Portal Act of 1947] shall apply to actions under this chapter. If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 630(a) of this title [section 11(a)] against the respondent named in the charge within 90 days after the date of the receipt of such notice.-

(f) Waiver

(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum-

(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this chapter;

(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F)

(i) the individual is given a period of at least 21 days within which to consider the agreement; or

(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to-

(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

(2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual's representative, alleging age discrimination of a kind prohibited under section 623 or 633a of this title [section 4 or 15] may not be considered knowing and voluntary unless at a minimum-

(A) subparagraphs (A) through (E) of paragraph (1) have been met; and

(B) the individual is given a reasonable period of time within which to consider the settlement agreement.

(3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).

(4) No waiver agreement may affect the Commission's rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.

NOTICES TO BE POSTED

SEC. 627. [Section 8]

Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Equal Employment Opportunity Commission setting forth information as the Commission deems appropriate to effectuate the purposes of this chapter.

RULES AND REGULATIONS

SEC. 628. [Section 9]

In accordance with the provisions of subchapter II of chapter 5 of title 5 [Administrative Procedures Act, 5 U.S.C. § 551 et seq.], the Equal Employment Opportunity Commission may issue such rules and regulations as it may consider necessary or appropriate for carrying out this chapter, and may establish such reasonable exemptions to and from any or all provisions of this chapter as it may find necessary and proper in the public interest.

CRIMINAL PENALTIES

SEC. 629. [Section 10]

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.

DEFINITIONS

SEC. 630. [Section 11]

For the purposes of this chapter-

(a) The term "person" means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.

(b) The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person; but shall not include an agency of the United States.

(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is fifty or more prior to July 1, 1968, or twenty-five or more on or after July 1, 1968, and such labor organization-

(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.]; or

(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or

(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.

(f) The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision. The term "employee" includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.
[The exclusion from the term "employee" of any person chosen by an elected official "to be on such official's personal staff, or an appointee on the policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office," remains in section 11(f). However, the Civil Rights Act of 1991 now provides special procedures for such persons who feel they are victims of age and other types of discrimination prohibited by EEOC enforced statutes. See section 321 of the Civil Rights Act of 1991.]
(g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

(h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.].

(i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].

(j) The term "firefighter" means an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position.

(k) The term "law enforcement officer" means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of a State, including an employee engaged in this activity who is transferred to a supervisory or administrative position. For the purpose of this subsection, "detention" includes the duties of employees assigned to guard individuals incarcerated in any penal institution.

(l) The term "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.

AGE LIMITS

SEC. 631. [Section 12]

(a) Individuals of at least 40 years of age

The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.

(b) Employees or applicants for employment in Federal Government

In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 633a of this title [section 15], the prohibitions established in section 633a of this title [section 15] shall be limited to individuals who are at least 40 years of age.

(c) Bona fide executives or high policymakers

(1) Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000.

(2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Equal Employment Opportunity Commission, after consultation with the Secretary of the Treasury, so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.

ANNUAL REPORT

SEC. 632. [Section 13]

FEDERAL-STATE RELATIONSHIP

SEC. 633. [Section 14]

(a) Federal action superseding State action

Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supersede any State action.

(b) Limitation of Federal action upon commencement of State proceedings

In the case of an alleged unlawful practice occurring in a State which has a law prohibiting 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 under section 626 of this title [section 7] before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. 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, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.

NONDISCRIMINATION ON ACCOUNT OF AGE IN FEDERAL GOVERNMENT EMPLOYMENT

SEC. 633a. [Section 15]

(a) Federal agencies affected

All personnel actions affecting employees or applicants for employment who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5 [5 U.S.C. § 102], in executive agencies as defined in section 105 of Title 5 [5 U.S.C. § 105] (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on age.

(b) Enforcement by Equal Employment Opportunity Commission and by Librarian of Congress in the Library of Congress; remedies; rules, regulations, orders, and instructions of Commission: compliance by Federal agencies; powers and duties of Commission; notification of final action on complaint of discrimination; exemptions: bona fide occupational qualification

Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission is authorized to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without backpay, as will effectuate the policies of this section. The Equal Employment Opportunity Commission shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission shall-

(1) be responsible for the review and evaluation of the operation of all agency programs designed to carry out the policy of this section, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each department, agency, or unit referred to in subsection (a) of this section;

(2) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to nondiscrimination in employment on account of age; and

(3) provide for the acceptance and processing of complaints of discrimination in Federal employment on account of age.

The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions of the Equal Employment Opportunity Commission which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. Reasonable exemptions to the provisions of this section may be established by the Commission but only when the Commission has established a maximum age requirement on the basis of a determination that age is a bona fide occupational qualification necessary to the performance of the duties of the position. With respect to employment in the Library of Congress, authorities granted in this subsection to the Equal Employment Opportunity Commission shall be exercised by the Librarian of Congress.

(c) Civil actions; jurisdiction; relief

Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.

(d) Notice to Commission; time of notice; Commission notification of prospective defendants; Commission elimination of unlawful practices

When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice.

(e) Duty of Government agency or official

Nothing contained in this section shall relieve any Government agency or official of the responsibility to assure nondiscrimination on account of age in employment as required under any provision of Federal law.

(f) Applicability of statutory provisions to personnel action of Federal departments, etc.

Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter, other than the provisions of sections 7(d)(3) and 631(b) of this title [section 12(b)] and the provisions of this section.

(g) Study and report to President and Congress by Equal Employment Opportunity Commission; scope

(1) The Equal Employment Opportunity Commission shall undertake a study relating to the effects of the amendments made to this section by the Age Discrimination in Employment Act Amendments of 1978, and the effects of section 631(b) of this title [section 12(b)].

(2) The Equal Employment Opportunity Commission shall transmit a report to the President and to the Congress containing the findings of the Commission resulting from the study of the Commission under paragraph (1) of this subsection. Such report shall be transmitted no later than January 1, 1980.

This Act shall become effective one hundred and eighty days after enactment, except (a) that the Secretary of Labor may extend the delay in effective date of any provision of this Act up to an additional ninety days thereafter if he finds that such time is necessary in permitting adjustments to the provisions hereof, and (b) that on or after the date of enactment the EEOC [originally, the Secretary of Labor] is authorized to issue such rules and regulations as may be necessary to carry out its provisions.

AUTHORIZATION OF APPROPRIATIONS

SEC. 634. [Section 17]

There are hereby authorized to be appropriated such sums as may be necessary to carry out this chapter

EDITOR'S NOTE: The following is the text of the Age Discrimination in Employment Act of 1967 (Pub. L. 90-202) (ADEA), as amended, as it appears in volume 29 of the United States Code, beginning at section 621. The ADEA prohibits employment discrimination against persons 40 years of age or older. The Older Workers Benefit Protection Act (Pub. L. 101-433) amended several sections of the ADEA. In addition, section 115 of the Civil Rights Act of 1991 (P.L. 102-166) amended section 7(e) of the ADEA (29 U. S.C. 626(e)). Cross references to the ADEA as enacted appear in italics following each section heading. Editor's notes also appear in italics.
An Act

To prohibit age discrimination in employment.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that this Act may be cited as the "Age Discrimination in Employment Act of 1967."

* * *

CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE

SEC. 621. [Section 2]

(a) The Congress hereby finds and declares that-

(1) 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;

(2) 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;

(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

EDUCATION AND RESEARCH PROGRAM; RECOMMENDATION TO CONGRESS

SEC. 622. [Section 3]

(a) The EEOC [originally, the Secretary of Labor] shall undertake studies and provide information to labor unions, management, and the general public concerning the needs and abilities of older workers, and their potentials for continued employment and contribution to the economy. In order to achieve the purposes of this chapter, the EEOC [originally, the Secretary of Labor] shall carry on a continuing program of education and information, under which he may, among other measures-

(1) undertake research, and promote research, with a view to reducing barriers to the employment of older persons, and the promotion of measures for utilizing their skills;

(2) publish and otherwise make available to employers, professional societies, the various media of communication, and other interested persons the findings of studies and other materials for the promotion of employment;

(3) foster through the public employment service system and through cooperative effort the development of facilities of public and private agencies for expanding the opportunities and potentials of older persons;

(4) sponsor and assist State and community informational and educational programs.

(b) Not later than six months after the effective date of this chapter, the Secretary shall recommend to the Congress any measures he may deem desirable to change the lower or upper age limits set forth in section 631 of this title [section 12].

PROHIBITION OF AGE DISCRIMINATION

SEC. 623. [Section 4]

(a) Employer practices

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) 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; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age.

(c) Labor organization practices

It shall be unlawful for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age;

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) Opposition to unlawful practices; participation in investigations, proceedings, or litigation

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

(e) Printing or publication of notice or advertisement indicating preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

(f) Lawful practices; age an occupational qualification; other reasonable factors; laws of foreign workplace; seniority system; employee benefit plans; discharge or discipline for good cause

It shall not be unlawful for an employer, employment agency, or labor organization-

(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where 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;

(2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section-

(A) to observe the terms of a bona fide seniority system that is not intended to evade the purposes of this chapter, except that no such seniority system shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual; or

(B) to observe the terms of a bona fide employee benefit plan-

(i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, as permissible under section 1625.10, title 29, Code of Federal Regulations (as in effect on June 22, 1989); or

(ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter.

Notwithstanding clause (i) or (ii) of subparagraph (B), no such employee benefit plan or voluntary early retirement incentive plan shall excuse the failure to hire any individual, and no such employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title, because of the age of such individual. An employer, employment agency, or labor organization acting under subparagraph (A), or under clause (i) or (ii) of subparagraph (B), shall have the burden of proving that such actions are lawful in any civil enforcement proceeding brought under this chapter; or

(3) to discharge or otherwise discipline an individual for good cause.

(g) [Repealed]

(h) Practices of foreign corporations controlled by American employers; foreign employers not controlled by American employers; factors determining control

(1) If an employer controls a corporation whose place of incorporation is in a foreign country, any practice by such corporation prohibited under this section shall be presumed to be such practice by such employer.

(2) The prohibitions of this section shall not apply where the employer is a foreign person not controlled by an American employer.

(3) For the purpose of this subsection the determination of whether an employer controls a corporation shall be based upon the-

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations, and

(D) common ownership or financial control,

of the employer and the corporation.

(i) Employee pension benefit plans; cessation or reduction of benefit accrual or of allocation to employee account; distribution of benefits after attainment of normal retirement age; compliance; highly compensated employees

(1) Except as otherwise provided in this subsection, it shall be unlawful for an employer, an employment agency, a labor organization, or any combination thereof to establish or maintain an employee pension benefit plan which requires or permits-

(A) 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, or

(B) in the case of a defined contribution plan, the cessation of allocations to an employee's account, or the reduction of the rate at which amounts are allocated to an employee's account, because of age.

(2) Nothing in this section shall be construed to prohibit an employer, employment agency, or labor organization from observing any provision of an employee pension benefit plan to the extent that such provision imposes (without regard to age) a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or years of participation which are taken into account for purposes of determining benefit accrual under the plan.

(3) 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-

(A) 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 with respect to such employee during such plan year shall be treated as satisfied to the extent of the actuarial equivalent of in-service distribution of benefits, and

(B) if distribution of benefits under such plan with respect to such employee has not commenced as of the end of such year in accordance with section 1056(a)(3) of this title [section 206(a)(3) of the Employee Retirement Income Security Act of 1974] and section 401(a)(14)(C) of Title 26 [the Internal Revenue Code of 1986], and the payment of benefits under such plan with respect to such employee is not suspended during such plan year pursuant to section 1053(a)(3)(B) of this title or section 411(a)(3)(B) of Title 26 [the Internal Revenue Code of 1986], then any requirement of this subsection for continued accrual of benefits under such plan with respect to such employee during such plan year shall be treated as satisfied to the extent of any adjustment in the benefit payable under the plan during such plan year attributable to the delay in the distribution of benefits after the attainment of normal retirement age.

The provisions of this paragraph shall apply in accordance with regulations of the Secretary of the Treasury. Such regulations shall provide for the application of the preceding provisions of this paragraph to all employee pension benefit plans subject to this subsection and may provide for the application of such provisions, in the case of any such employee, with respect to any period of time within a plan year.

(4) Compliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.

(5) Paragraph (1) shall not apply with respect to any employee who is a highly compensated employee (within the meaning of section 414(q) of Title 26 [the Internal Revenue Code of 1986]) to the extent provided in regulations prescribed by the Secretary of the Treasury for purposes of precluding discrimination in favor of highly compensated employees within the meaning of subchapter D of chapter 1 of Title 26 [the Internal Revenue Code of 1986].

(6) A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the subsidized portion of any early retirement benefit is disregarded in determining benefit accruals or it is a plan permitted by subsection (m) of this section.

(7) Any regulations prescribed by the Secretary of the Treasury pursuant to clause (v) of section 411(b)(1)(H) of Title 26 [the Internal Revenue Code of 1986] and subparagraphs (C) and (D), of section 411(b)(2) of Title 26 [the Internal Revenue Code of 1986] shall apply with respect to the requirements of this subsection in the same manner and to the same extent as such regulations apply with respect to the requirements of such sections 411(b)(1)(H) and 411(b)(2).

(8) A plan shall not be treated as failing to meet the requirements of this section solely because such plan provides a normal retirement age described in section 1002(24)(B) [section 2(24)(B) of the Employee Retirement Income Security Act of 1974] of this title and section 411(a)(8)(B) of Title 26 [the Internal Revenue Code of 1986].

(9) For purposes of this subsection-

(A) The terms "employee pension benefit plan", "defined benefit plan", "defined contribution plan", and "normal retirement age" have the meanings provided such terms in section 1002 of this title [section 3 of the Employee Retirement Income Security Act of 1974].

(B) The term "compensation" has the meaning provided by section 414(s) of Title 26 [the Internal Revenue Code of 1986].

(10) Special rules relating to age

(A) Comparison to similarly situated younger individual

(i) In general-A plan shall not be treated as failing to meet the requirements of paragraph (1) if a participant's accrued benefit, as determined as of any date under the terms of the plan, would be equal to or greater than that of any similarly situated, younger individual who is or could be a participant.

(ii) Similarly situated-For purposes of this subparagraph, a participant is similarly situated to any other individual if such participant is identical to such other individual in every respect (including period of service, compensation, position, date of hire, work history, and any other respect) except for age.

(iii) Disregard of subsidized early retirement benefits-In determining the accrued benefit as of any date for purposes of this clause, the subsidized portion of any early retirement benefit or retirement-type subsidy shall be disregarded.

(iv) Accrued benefit-For purposes of this subparagraph, the accrued benefit may, under the terms of the plan, be expressed as an annuity payable at normal retirement age, the balance of a hypothetical account, or the current value of the accumulated percentage of the employee's final average compensation.

(B) Applicable defined benefit plans

(i) Interest credits

(I)

In general-An applicable defined benefit plan shall be treated as failing to meet the requirements of paragraph (1) unless the terms of the plan provide that any interest credit (or an equivalent amount) for any plan year shall be at a rate which is not greater than a market rate of return. A plan shall not be treated as failing to meet the requirements of this subclause merely because the plan provides for a reasonable minimum guaranteed rate of return or for a rate of return that is equal to the greater of a fixed or variable rate of return

(II)

Preservation of capital-An interest credit (or an equivalent amount) of less than zero shall in no event result in the account balance or similar amount being less than the aggregate amount of contributions credited to the account.

(III)

Market rate of return-The Secretary of the Treasury may provide by regulation for rules governing the calculation of a market rate of return for purposes of subclause (I) and for permissible methods of crediting interest to the account (including fixed or variable interest rates) resulting in effective rates of return meeting the requirements of subclause (I). In the case of a governmental plan (as defined in the first sentence of section 414(d) of Title 26 [the Internal Revenue Code of 1986], a rate of return or a method of crediting interest established pursuant to any provision of Federal, State, or local law (including any administrative rule or policy adopted in accordance with any such law) shall be treated as a market rate of return for purposes of subclause (I) and a permissible method of crediting interest for purposes of meeting the requirements of subclause (I), except that this sentence shall only apply to a rate of return or method of crediting interest if such rate or method does not violate any other requirement of this chapter.

(ii)

Special rule for plan conversions-If, after June 29, 2005, an applicable plan amendment is adopted, the plan shall be treated as failing to meet the requirements of paragraph (1)(H) unless the requirements of clause (iii) are met with respect to each individual who was a participant in the plan immediately before the adoption of the amendment.

(iii) Rate of benefit accrual-Subject to clause (iv), the requirements of this clause are met with respect to any participant if the accrued benefit of the participant under the terms of the plan as in effect after the amendment is not less than the sum of-

(I) the participant's accrued benefit for years of service before the effective date of the amendment, determined under the terms of the plan as in effect before the amendment, plus

(II) the participant's accrued benefit for years of service after the effective date of the amendment, determined under the terms of the plan as in effect after the amendment.

(iv) Special rules for early retirement subsidies-For purposes of clause (iii)(I), the plan shall credit the accumulation account or similar amount with the amount of any early retirement benefit or retirement-type subsidy for the plan year in which the participant retires if, as of such time, the participant has met the age, years of service, and other requirements under the plan for entitlement to such benefit or subsidy.

(v) Applicable plan amendment-For purposes of this subparagraph-

(I) In general-The term "applicable plan amendment" means an amendment to a defined benefit plan which has the effect of converting the plan to an applicable defined benefit plan.

(II) Special rule for coordinated benefits-If the benefits of 2 or more defined benefit plans established or maintained by an employer are coordinated in such a manner as to have the effect of the adoption of an amendment described in subclause (I), the sponsor of the defined benefit plan or plans providing for such coordination shall be treated as having adopted such a plan amendment as of the date such coordination begins.

(III) Multiple amendments-The Secretary of the Treasury shall issue regulations to prevent the avoidance of the purposes of this subparagraph through the use of 2 or more plan amendments rather than a single amendment.

(IV) Applicable defined benefit plan-For purposes of this subparagraph, the term "applicable defined benefit plan" has the meaning given such term by section 1053(f)(3) of this title [section 203(f)(3) of the Employee Retirement Income Security Act of 1974].

(vi) Termination requirements-An applicable defined benefit plan shall not be treated as meeting the requirements of clause (i) unless the plan provides that, upon the termination of the plan-

(I) if the interest credit rate (or an equivalent amount) under the plan is a variable rate, the rate of interest used to determine accrued benefits under the plan shall be equal to the average of the rates of interest used under the plan during the 5-year period ending on the termination date, and

(II) the interest rate and mortality table used to determine the amount of any benefit under the plan payable in the form of an annuity payable at normal retirement age shall be the rate and table specified under the plan for such purpose as of the termination date, except that if such interest rate is a variable rate, the interest rate shall be determined under the rules of subclause (I).

(C) Certain offsets permitted-A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the plan provides offsets against benefits under the plan to the extent such offsets are allowable in applying the requirements of section 401(a) of Title 26 [the Internal Revenue Code of 1986].

(D) Permitted disparities in plan contributions or benefits-A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the plan provides a disparity in contributions or benefits with respect to which the requirements of section 401(l) of Title 26 [the Internal Revenue Code of 1986] are met.

(E) Indexing permitted-

(i) In general-A plan shall not be treated as failing to meet the requirements of paragraph (1) solely because the plan provides for indexing of accrued benefits under the plan.

(ii) Protection against loss-Except in the case of any benefit provided in the form of a variable annuity, clause (i) shall not apply with respect to any indexing which results in an accrued benefit less than the accrued benefit determined without regard to such indexing.

(iii) Indexing-For purposes of this subparagraph, the term "indexing" means, in connection with an accrued benefit, the periodic adjustment of the accrued benefit by means of the application of a recognized investment index or methodology.

(F) Early retirement benefit or retirement-type subsidy-For purposes of this paragraph, the terms "early retirement benefit" and "retirement-type subsidy" have the meaning given such terms in section 1053(g)(2)(A) of this title [section 203(g)(2)(A) of the Employee Retirement Income Security Act of 1974].

(G) Benefit accrued to date-For purposes of this paragraph, any reference to the accrued benefit shall be a reference to such benefit accrued to date.

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken-

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained-

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or

(B) (i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or

(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of-

(I) the age of retirement in effect on the date of such discharge under such law; and

(II) age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

(k) Seniority system or employee benefit plan; compliance

A seniority system or employee benefit plan shall comply with this chapter regardless of the date of adoption of such system or plan.

(l) Lawful practices; minimum age as condition of eligibility for retirement benefits; deductions from severance pay; reduction of long-term disability benefits

Notwithstanding clause (i) or (ii) of subsection (f)(2)(B) of this section-

(1)

(A) It shall not be a violation of subsection (a), (b), (c), or (e) of this section solely because-

(i) an employee pension benefit plan (as defined in section 1002(2) of this title [section 2(2) of the Employee Retirement Income Security Act of 1974]) provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits; or

(ii) a defined benefit plan (as defined in section 1002(35) of this title [section 2(35) of the Employee Retirement Income Security Act]) provides for-

(I) payments that constitute the subsidized portion of an early retirement benefit; or

(II) social security supplements for plan participants that commence before the age and terminate at the age (specified by the plan) when participants are eligible to receive reduced or unreduced old-age insurance benefits under title II of the Social Security Act (42 U.S.C. 401 et seq.), and that do not exceed such old-age insurance benefits.

(B) A voluntary early retirement incentive plan that-

(i) is maintained by-

(I) a local educational agency (as defined in section 7801 of Title 20 [the Elementary and Secondary Education Act of 1965], or

(II) an education association which principally represents employees of 1 or more agencies described in subclause (I) and which is described in section 501(c) (5) or (6) of Title 26 [the Internal Revenue Code of 1986] and exempt from taxation under section 501(a) of Title 26 [the Internal Revenue Code of 1986], and

(ii) makes payments or supplements described in subclauses (I) and (II) of subparagraph (A)(ii) in coordination with a defined benefit plan (as so defined) maintained by an eligible employer described in section 457(e)(1) (A) of Title 26 [the Internal Revenue Code of 1986] or by an education association described in clause (i)(II),

shall be treated solely for purposes of subparagraph (A)(ii) as if it were a part of the defined benefit plan with respect to such payments or supplements. Payments or supplements under such a voluntary early retirement incentive plan shall not constitute severance pay for purposes of paragraph (2).

(2)

(A) It shall not be a violation of subsection (a), (b), (c), or (e) of this section solely because following a contingent event unrelated to age-

(i) the value of any retiree health benefits received by an individual eligible for an immediate pension;

(ii) the value of any additional pension benefits that are made available solely as a result of the contingent event unrelated to age and following which the individual is eligible for not less than an immediate and unreduced pension; or

(iii) the values described in both clauses (i) and (ii); are deducted from severance pay made available as a result of the contingent event unrelated to age.

(B) For an individual who receives immediate pension benefits that are actuarially reduced under subparagraph (A)(i), the amount of the deduction available pursuant to subparagraph (A)(i) shall be reduced by the same percentage as the reduction in the pension benefits.

(C) For purposes of this paragraph, severance pay shall include that portion of supplemental unemployment compensation benefits (as described in section 501(c)(17) of Title 26 [the Internal Revenue Code of 1986]) that-

(i) constitutes additional benefits of up to 52 weeks;

(ii) has the primary purpose and effect of continuing benefits until an individual becomes eligible for an immediate and unreduced pension; and

(iii) is discontinued once the individual becomes eligible for an immediate and unreduced pension.

(D) For purposes of this paragraph and solely in order to make the deduction authorized under this paragraph, the term "retiree health benefits'' means benefits provided pursuant to a group health plan covering retirees, for which (determined as of the contingent event unrelated to age)-

(i) the package of benefits provided by the employer for the retirees who are below age 65 is at least comparable to benefits provided under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);

(ii) the package of benefits provided by the employer for the retirees who are age 65 and above is at least comparable to that offered under a plan that provides a benefit package with one-fourth the value of benefits provided under title XVIII of such Act; or

(iii) the package of benefits provided by the employer is as described in clauses (i) and (ii).

(ii) If the obligation of the employer to provide retiree health benefits is of unlimited duration, the value for each individual shall be calculated at a rate of $48,000 for individuals below age 65, and $24,000 for individuals age 65 and above.

(iii) The values described in clauses (i) and (ii) shall be calculated based on the age of the individual as of the date of the contingent event unrelated to age. The values are effective on October 16, 1990, and shall be adjusted on an annual basis, with respect to a contingent event that occurs subsequent to the first year after October 16, 1990, based on the medical component of the Consumer Price Index for all-urban consumers published by the Department of Labor.

(iv) If an individual is required to pay a premium for retiree health benefits, the value calculated pursuant to this subparagraph shall be reduced by whatever percentage of the overall premium the individual is required to pay.

(F) If an employer that has implemented a deduction pursuant to subparagraph (A) fails to fulfill the obligation described in subparagraph (E), any aggrieved individual may bring an action for specific performance of the obligation described in subparagraph (E). The relief shall be in addition to any other remedies provided under Federal or State law.

(3) It shall not be a violation of subsection (a), (b), (c), or (e) of this section solely because an employer provides a bona fide employee benefit plan or plans under which long-term disability benefits received by an individual are reduced by any pension benefits (other than those attributable to employee contributions)-

(A) paid to the individual that the individual voluntarily elects to receive; or

(B) for which an individual who has attained the later of age 62 or normal retirement age is eligible.

(m) Voluntary retirement incentive plans

Notwithstanding subsection (f)(2)(b) of this section, it shall not be a violation of subsection (a), (b), (c), or (e) of this section solely because a plan of an institution of higher education (as defined in section 1001 of Title 20 [the Higher Education Act of 1965]) offers employees who are serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) supplemental benefits upon voluntary retirement that are reduced or eliminated on the basis of age, if-

(1) such institution does not implement with respect to such employees any age-based reduction or cessation of benefits that are not such supplemental benefits, except as permitted by other provisions of this chapter;

(2) such supplemental benefits are in addition to any retirement or severance benefits which have been offered generally to employees serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure), independent of any early retirement or exit-incentive plan, within the preceding 365 days; and

(3) any employee who attains the minimum age and satisfies all non-age-based conditions for receiving a benefit under the plan has an opportunity lasting not less than 180 days to elect to retire and to receive the maximum benefit that could then be elected by a younger but otherwise similarly situated employee, and the plan does not require retirement to occur sooner than 180 days after such election.

STUDY BY SECRETARY OF LABOR; REPORTS TO PRESIDENT AND CONGRESS; SCOPE OF STUDY; IMPLEMENTATION OF STUDY; TRANSMITTAL DATE OF REPORTS

SEC. 624. [Section 5]

(a)

(1) The EEOC [originally, the Secretary of Labor] is directed to undertake an appropriate study of institutional and other arrangements giving rise to involuntary retirement, and report his findings and any appropriate legislative recommendations to the President and to the Congress. Such study shall include-

(A) an examination of the effect of the amendment made by section 3(a) of the Age Discrimination in Employment Act Amendments of 1978 in raising the upper age limitation established by section 631(a) of this title [section 1(a)] to 70 years of age;

(B) a determination of the feasibility of eliminating such limitation;

(C) a determination of the feasibility of raising such limitation above 70 years of age; and

(D) an examination of the effect of the exemption contained in section 631(c) of this title [section 1(c)], relating to certain executive employees, and the exemption contained in section 631(d) of this title [section 1(d)], relating to tenured teaching personnel.

(2) The EEOC [originally, the Secretary of Labor] may undertake the study required by paragraph (1) of this subsection directly or by contract or other arrangement.

(b) The report required by subsection (a) of this section shall be transmitted to the President and to the Congress as an interim report not later than January 1, 1981, and in final form not later than January 1, 1982.

Transfer of Functions [All functions relating to age discrimination administration and enforcement vested by Section 6 in the Secretary of Labor or the Civil Service Commission were transferred to the Equal Employment Opportunity Commission effective January 1, 1979 under the President's Reorganization Plan No. 1.]

ADMINISTRATION

SEC. 625. [Section 6]

The EEOC [originally, the Secretary of Labor] shall have the power-

(a) Delegation of functions; appointment of personnel; technical assistance

to make delegations, to appoint such agents and employees, and to pay for technical assistance on a fee for service basis, as he deems necessary to assist him in the performance of his functions under this chapter;

(b) Cooperation with other agencies, employers, labor organizations, and employment agencies

to cooperate with regional, State, local, and other agencies, and to cooperate with and furnish technical assistance to employers, labor organizations, and employment agencies to aid in effectuating the purposes of this chapter.

RECORDKEEPING, INVESTIGATION, AND ENFORCEMENT

SEC. 626. [Section 7]

(a) Attendance of witnesses; investigations, inspections, records, and homework regulations

The Equal Employment Opportunity Commission shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of this chapter in accordance with the powers and procedures provided in sections 209 and 211 of this title [sections 9 and 11 of the Fair Labor Standards Act of 1938, as amended].

(b) Enforcement; prohibition of age discrimination under fair labor standards; unpaid minimum wages and unpaid overtime compensation; liquidated damages; judicial relief; conciliation, conference, and persuasion

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title [sections 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended], and subsection (c) of this section. Any act prohibited under section 623 of this title [section 4] shall be deemed to be a prohibited act under section 215 of this title [section 15 of the Fair Labor Standards Act of 1938, as amended]. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title [sections 16 and 17 of the Fair Labor Standards Act of 1938, as amended]: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. Before instituting any action under this section, the Equal Employment Opportunity Commission shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

(c) Civil actions; persons aggrieved; jurisdiction; judicial relief; termination of individual action upon commencement of action by Commission; jury trial

(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter.

(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action.

(d)(1) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed-

(A) within 180 days after the alleged unlawful practice occurred; or

(B) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

(2) Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(e) Reliance on administrative rulings; notice of dismissal or termination; civil action after receipt of notice

Section 259 of this title [section 10 of the Portal to Portal Act of 1947] shall apply to actions under this chapter. If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 630(a) of this title [section 11(a)] against the respondent named in the charge within 90 days after the date of the receipt of such notice.-

(f) Waiver

(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum-

(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this chapter;

(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to-

(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

(2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual's representative, alleging age discrimination of a kind prohibited under section 623 or 633a of this title [section 4 or 15] may not be considered knowing and voluntary unless at a minimum-

(A) subparagraphs (A) through (E) of paragraph (1) have been met; and

(B) the individual is given a reasonable period of time within which to consider the settlement agreement.

(3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).

(4) No waiver agreement may affect the Commission's rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.

NOTICES TO BE POSTED

SEC. 627. [Section 8]

Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Equal Employment Opportunity Commission setting forth information as the Commission deems appropriate to effectuate the purposes of this chapter.

RULES AND REGULATIONS

SEC. 628. [Section 9]

In accordance with the provisions of subchapter II of chapter 5 of title 5 [Administrative Procedures Act, 5 U.S.C. § 551 et seq.], the Equal Employment Opportunity Commission may issue such rules and regulations as it may consider necessary or appropriate for carrying out this chapter, and may establish such reasonable exemptions to and from any or all provisions of this chapter as it may find necessary and proper in the public interest.

CRIMINAL PENALTIES

SEC. 629. [Section 10]

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.

DEFINITIONS

SEC. 630. [Section 11]

For the purposes of this chapter-

(a) The term "person" means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.

(b) The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person; but shall not include an agency of the United States.

(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is fifty or more prior to July 1, 1968, or twenty-five or more on or after July 1, 1968, and such labor organization-

(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.]; or

(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or

(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.

(f) The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision. The term "employee" includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.
[The exclusion from the term "employee" of any person chosen by an elected official "to be on such official's personal staff, or an appointee on the policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office," remains in section 11(f). However, the Civil Rights Act of 1991 now provides special procedures for such persons who feel they are victims of age and other types of discrimination prohibited by EEOC enforced statutes. See section 321 of the Civil Rights Act of 1991.]
(g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

(h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.].

(i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].

(j) The term "firefighter" means an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position.

(k) The term "law enforcement officer" means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of a State, including an employee engaged in this activity who is transferred to a supervisory or administrative position. For the purpose of this subsection, "detention" includes the duties of employees assigned to guard individuals incarcerated in any penal institution.

(l) The term "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.

AGE LIMITS

SEC. 631. [Section 12]

(a) Individuals of at least 40 years of age

The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.

(b) Employees or applicants for employment in Federal Government

In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 633a of this title [section 15], the prohibitions established in section 633a of this title [section 15] shall be limited to individuals who are at least 40 years of age.

(c) Bona fide executives or high policymakers

(1) Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000.

(2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Equal Employment Opportunity Commission, after consultation with the Secretary of the Treasury, so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.

ANNUAL REPORT

SEC. 632. [Section 13]

FEDERAL-STATE RELATIONSHIP

SEC. 633. [Section 14]

(a) Federal action superseding State action

Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supersede any State action.

(b) Limitation of Federal action upon commencement of State proceedings

In the case of an alleged unlawful practice occurring in a State which has a law prohibiting 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 under section 626 of this title [section 7] before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. 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, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.

NONDISCRIMINATION ON ACCOUNT OF AGE IN FEDERAL GOVERNMENT EMPLOYMENT

SEC. 633a. [Section 15]

(a) Federal agencies affected

All personnel actions affecting employees or applicants for employment who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5 [5 U.S.C. § 102], in executive agencies as defined in section 105 of Title 5 [5 U.S.C. § 105] (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on age.

(b) Enforcement by Equal Employment Opportunity Commission and by Librarian of Congress in the Library of Congress; remedies; rules, regulations, orders, and instructions of Commission: compliance by Federal agencies; powers and duties of Commission; notification of final action on complaint of discrimination; exemptions: bona fide occupational qualification

Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission is authorized to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without backpay, as will effectuate the policies of this section. The Equal Employment Opportunity Commission shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission shall-

(1) be responsible for the review and evaluation of the operation of all agency programs designed to carry out the policy of this section, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each department, agency, or unit referred to in subsection (a) of this section;

(2) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to nondiscrimination in employment on account of age; and

(3) provide for the acceptance and processing of complaints of discrimination in Federal employment on account of age.

The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions of the Equal Employment Opportunity Commission which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. Reasonable exemptions to the provisions of this section may be established by the Commission but only when the Commission has established a maximum age requirement on the basis of a determination that age is a bona fide occupational qualification necessary to the performance of the duties of the position. With respect to employment in the Library of Congress, authorities granted in this subsection to the Equal Employment Opportunity Commission shall be exercised by the Librarian of Congress.

(c) Civil actions; jurisdiction; relief

Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.

(d) Notice to Commission; time of notice; Commission notification of prospective defendants; Commission elimination of unlawful practices

When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice.

(e) Duty of Government agency or official

Nothing contained in this section shall relieve any Government agency or official of the responsibility to assure nondiscrimination on account of age in employment as required under any provision of Federal law.

(f) Applicability of statutory provisions to personnel action of Federal departments, etc.

Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter, other than the provisions of sections 7(d)(3) and 631(b) of this title [section 12(b)] and the provisions of this section.

(g) Study and report to President and Congress by Equal Employment Opportunity Commission; scope

(1) The Equal Employment Opportunity Commission shall undertake a study relating to the effects of the amendments made to this section by the Age Discrimination in Employment Act Amendments of 1978, and the effects of section 631(b) of this title [section 12(b)].

(2) The Equal Employment Opportunity Commission shall transmit a report to the President and to the Congress containing the findings of the Commission resulting from the study of the Commission under paragraph (1) of this subsection. Such report shall be transmitted no later than January 1, 1980.

This Act shall become effective one hundred and eighty days after enactment, except (a) that the Secretary of Labor may extend the delay in effective date of any provision of this Act up to an additional ninety days thereafter if he finds that such time is necessary in permitting adjustments to the provisions hereof, and (b) that on or after the date of enactment the EEOC [originally, the Secretary of Labor] is authorized to issue such rules and regulations as may be necessary to carry out its provisions.

AUTHORIZATION OF APPROPRIATIONS

SEC. 634. [Section 17]

There are hereby authorized to be appropriated such sums as may be necessary to carry out this chapter

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The Age Discrimination in Employment Act of 1967

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EDITOR'S NOTE: The following is the text of the Age Discrimination in Employment Act of 1967 (Pub. L. 90-202) (ADEA), as amended, as it appears in volume 29 of the United States Code, beginning at section 621. The ADEA prohibits employment discrimination against persons 40 years of age or older.

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The State of Age Discrimination and Older Worker in the U.S. 50 Years after the Age Discrimination in Employment Act (ADEA)

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The State of Age Discrimination and Older Worker in the U.S. 50 Years after the Age Discrimination in Employment Act (ADEA)

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“The perception that age discrimination exists in our workplaces is prevalent. More than 6 in 10 workers age 45 and older say they have seen or experienced age discrimination in the workplace. Of those, 90 percent say it is somewhat or very common, according to a 2017 survey. In another survey in 2015, more than 3 of 4 older workers said their age was an obstacle to finding a job.”

“In the first years of ADEA enforcement, yearly charge filings with DOL ranged from just over 1,000 to over 5,000. The EEOC assumed responsibility for the ADEA in 1979, ADEA charges jumped most significantly in 1983, increasing by 67 percent from the previous year, which was also two times the percentage increase of other types of charge filings in 1983. ADEA charges filed with the EEOC reached an all-time high of 24,582 in fiscal year 2008.”

“Research shows that older workers’ continued denial of equal opportunity often derives from negative stereotypes. Indeed, there is strong “evidence that age bias and negative age stereotypes about older workers continue to affect older workers’ employment experiences.”

“The financial and emotional harm of age discrimination on older workers and their families is significant. Once an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and will likely take a significant pay cut if she becomes re-employed.[188] The loss of a job has serious long-term financial consequences as older workers often must draw down their retirement savings while unemployed, and are likely to suffer substantial losses in income if they become re-employed.”

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by Victoria A. Lipnic June 2018
Acting Chair
U.S. Equal Employment Opportunity Commission
Dear Reader,

This month marks the 50th anniversary of the effective date of the Age Discrimination in Employment Act (the ADEA) -- one of the premier statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

When I first joined the EEOC in April 2010, the job market was very different than it is today. The effects of the Great Recession were still being widely felt throughout the economy, and predictions were that it would take the nation 10 years or more to recover from steep job losses. At the EEOC, we were concerned that these job losses would hit older workers particularly hard.

Accordingly, shortly after I joined the Commission, one of the first public Commission meetings we held in November 2010, was about the " Impact of the Economy on Older Workers."

Fast forward to today, and as of this month, the nation is experiencing its lowest unemployment rate in 18 years. Instead of shedding hundreds of thousands of jobs each month, the economy is gaining them. This is very good news for America's workers.

But consider this: older workers who lose a job have much more difficulty finding a new job than younger workers. A 54-year-old worker who may have lost his job in early 2008 at the beginning of the Great Recession is now 64 years old. The average unemployment duration for a 54-year-old was almost a year, and it may have taken that person two or three years to find a new job. Further, that new job may not have been on a par with the one he had before. To make up for that financial loss, he will likely need to work longer than originally planned.

Now consider a 54-year-old worker who loses her job in today's economy. Today, jobs are plentiful and conditions are much more favorable for finding new jobs compared to 10 years ago. But, there is one constant for today's 54-year-old and the one from 10 years ago -- age discrimination.

As experts testified at the EEOC's meeting in June 2017 on The ADEA @ 50 -- More Relevant Than Ever, age discrimination remains a significant and costly problem for workers, their families, and our economy.

A few additional points for your consideration. Today's Baby Boomers range in age from 54 to 72 and because of that nearly 20-year span in age, they have widely different considerations about work and retirement. While about 10,000 Baby Boomers retire every day, many have inadequate savings for retirement. Work life has changed dramatically since Boomers entered the workforce. Instead of a career spanning one industry and a few positions as was expected at the beginning of their careers, most workers today are expected to have 11 different jobs in the modern, dynamic economy. Right behind the Boomers, the leading edge of Generation X are now in their early 50's. And, in 2016, Millennials surpassed the Baby Boomers as the largest segment of the workforce in 2016.

The scene having now been set, I offer this report, marking the 50th anniversary of when the ADEA took effect, culminating a year-long recognition by the EEOC of the importance of the ADEA as a significant civil rights law. While it is not exhaustive (as there are treatises devoted to the ADEA, after all), it is meant to serve as a guide to the history and significant developments of the law.

I hope the report also serves to put to rest outdated assumptions about older workers (who should more aptly be described as "experienced workers") and about age discrimination, which harm workers, their families and our economy. Today's experienced workers are healthier, more educated, and working and living longer than previous generations. Age-diverse teams and workforces can improve employee engagement, performance, and productivity. Experienced workers have talent that our economy cannot afford to waste.

I want to thank the staff at the EEOC for their contributions to this report, especially Cathy Ventrell-Monsees, whose passion for all things ADEA is priceless (and perhaps ageless).

Victoria A. Lipnic
Acting Chair
U.S. Equal Employment Opportunity Commission

June 2018

I. Overview

In passing the ADEA, Congress recognized that age discrimination was caused primarily by unfounded assumptions that age impacted ability.[4] To prevent and stop such arbitrary discrimination, the ADEA requires employers to consider individual ability, rather than assumptions about age, in making an employment decision.

A few years after the ADEA was enacted, the Senate Special Committee on Aging noted that the "ADEA was enacted, not only to enforce the law, but to provide the facts that would help change attitudes."[5] It was commonly assumed that at some age and in some jobs, age limited the abilities of older workers.[6] Today we ask: have attitudes about older workers, their abilities, and age discrimination changed in the wake of the ADEA over the past 50 years? Have employment practices changed to promote the employment of older workers?

This report examines the current state of age discrimination and older workers in the U.S. 50 years after the ADEA took effect in June 1968. It begins with a brief review of the history of the ADEA and its enforcement by the Department of Labor (DOL) and the EEOC. It describes the significant changes in who the older worker of today is compared to the typical older worker of 1967.Today's older workers are more diverse and more educated than previous generations. They are healthier and working and living longer. The women and men confronting age discrimination today are in all parts of our country -- in rural and urban communities, in blue and white-collar jobs, in service and tech industries, and are of all races, ethnicities and income.

This report acknowledges the significant harm and costs to older workers, their families, and employers that age discrimination causes. It is time to put to rest outdated and unfounded assumptions about age, older workers, and discrimination. Changing practices can help change attitudes. Thisreport concludes with promising practices for employers to not only avoid age discrimination, but to recognize the value of a multi-generational workforce. Simply put, our economy cannot afford to waste the knowledge, talent, and experience of older workers.[10]

II. A Brief History of the ADEA

A. The 1965 Wirtz Report

The Wirtz Report examined the nature, scope, and consequences of age discrimination in the workplace of the 1960s. It found that employers believed age impacted ability. It also found that without any factual basis or consideration of individual abilities, employers routinely barred workers in their 40s, 50s, and 60s from a wide range of jobs.[15]

The Wirtz Report found that one-half of employers used age limits to deny jobs to workers age 45 and older.[19] It found vast differences in perceptions of age and physical ability with some employers refusing to hire workers after age 25 and others hiring workers until age 60 for jobs involving comparable physical capabilities.[20]

Finally, the Wirtz Report considered the significant consequences of age discrimination on older workers, which it described as hardship and frustration, and on the economy with billion dollar costs in unemployment and early Social Security payouts, plus lost production and earnings.[26] The Report concluded with recommendations for a national policy against arbitrary discrimination in employment on the basis of age, actions to modify institutional arrangements that disadvantaged older workers, and actions to increase the hiring of older workers.[27]

B. The 1967 ADEA

Recognizing the challenge of changing both employment practices and attitudes about age and ability,[32] Congress set forth ambitious purposes for the ADEA:

It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.[33]

Congress crafted a statute based on provisions from both Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act (FLSA).[34] The ADEA shares Title VII's purpose to eliminate discrimination from the workplace.[35] The ADEA's prohibitions were taken verbatim from Title VII,[36] as was its narrow exception for the use of age as a bona fide occupational qualification (BFOQ).[37] Courts interpret this language from Title VII, including its prohibitions and the BFOQ exception, to apply with "equal force" to the ADEA's substantive provisions.[38] The remedies of the ADEA, by contrast, flow from the FLSA. When initially enacted, Congress limited ADEA coverage to individuals age 40 to 64[39] and again directed the Secretary of Labor to study the ages protected by the statute.[40]

C. Amendments to the ADEA[41]

In its first decade, the ADEA was expanded to cover federal, state and local government employees.[42] Congress sought to provide older workers with the same basic civil rights as other workers.[43]

With each significant amendment to the ADEA, Congress laid out the scientific evidence refuting any assumed correlation between age and ability.[44] At the same time, however, the early versions of the ADEA essentially fostered the belief that age affected ability by capping the age of coverage -- initially at 65, and then at age 70 in 1978.[45] These age caps on coverage permitted employers to deny jobs to the oldest workers and to force workers to retire based solely on age.[46] Congress finally resolved this tension in the 1986 amendments to the ADEA, which removed the age-70 cap on coverage.[47] Congress supported removal of the age-70 cap with both scientific[48] and public opinion evidence for the fact that age is not predictive of job-related ability or performance.[49]

The most extensive revisions to the ADEA occurred in 1990 when Congress enacted the Older Workers Benefit Protection Act of 1990 (OWBPA)[50] in response to the Supreme Court's decision in Public Employees Retirement System of Ohio v. Betts.[51] The OWBPA amended the ADEA to restore its original congressional intent to prohibit age discrimination in employee benefits,[52] and established new minimum standards for voluntary waivers and releases of ADEA claims or rights.[53]

D.Enforcement of the ADEA

1. Department of Labor (1968 - 1979)

2. Equal Employment Opportunity Commission (1979 - Present)

III. Demographics of the Older American Workforce

A. Significant Growth in the Older Workforce

Today's US labor force has doubled in size,[87] and is older, more diverse, more educated, and more female than it was 50 years ago.[88]

Age of Civilian US Labor Force (Chart 1):

These trends are expected to continue for decades.[89] One of the most notable changes in the American workforce over the past 50 years is that it has aged significantly with the aging of the Baby Boom generation (79 million people) over that time.[90]

Increased labor force participation by older women is a significant factor in this growth of the older workforce. Women age 55 and older are projected to make up over 25 percent of the women's labor force by 2024, which is almost double their share from 2000. BLS also forecasts that twice as many women over 55 will be in the labor force as women ages 16-24 by 2024. BLS also estimates that women over 65 will make up roughly the same percentage of the female workforce as older men do of the male workforce.[94]
Change in Racial/Ethnic Composition of Labor Force Participants Ages 65+, 1971 - 2017 (Chart 3)
The Great Recession of 2007-2009 [100](also known as the Great Dislocation[101]) forced many older workers to revise their retirement plans and to work longer to recoup drained retirement accounts and lost savings. It left many older workers less confident that they would have sufficient income for a comfortable retirement.[102] As a result, the Great Recession flipped retirement plans and expectations for older workers. [103] Prior to 2009, most Americans planned to retire before age 65.[104] Since then, most say they will retire after age 65.[105]

Unfortunately, retirement expectations frequently do not pan out. For example, one study reports that while 40 percent of workers planned to work until age 70 or later, only 4 percent actually do.[106] Unexpected events such as ill health, caregiving responsibilities, getting laid off, and age discrimination can thwart the best-laid plans.

B. Increasing Diversity of the Older Worker Population

Change in Racial/Ethnic Composition of Labor Force Participants Ages 55-64, 1971 - 2017 (Chart 2)[115]

C. Older Workers are Employed in Many Occupations and Industries

The 1965 Wirtz Report noted that older workers were more likely to be employed in coal mining, agriculture, and railroads, and in older manufacturing industries such as textiles, leather, apparel, footwear, and food.[116] Today, workers ages 55 and older are employed across many types of occupations.[117] More than 42 percent of older workers are in management, professional, and related occupations, a somewhat higher proportion than that for all workers.[118] Thirty-six percent of older workers are engaged in blue collar work.[119] Workers age 65 and older are in part-time jobs at more than double the rate of younger workers, but they are increasingly seeking and obtaining full-time employment.[120] Finally, an increasing number of older workers are self-employed; the rate of self-employment is much higher for older than for younger workers.[121]

The five most common jobs for men and women age 62 and older are:[122]

Men

Women

Top occupations

% of older workers

Top occupations

% of older workers

Delivery workers and truck drivers

3.95

Teachers, except postsecondary

6.30

Janitors and building cleaners

2.99

Secretaries and administrative assistants

6.04

Farmers and ranchers

2.58

Personal care aides

3.60

Postsecondary teachers

2.39

Registered nurses

3.45

Lawyers

2.37

Child care workers

3.36

Notably, many of the most common jobs held by older workers require a college education (e.g., teachers, lawyers, nurses), and/or are physically demanding (e.g., delivery workers, janitors, aides, and nurses.) [123]

Today, it is estimated that about 44 percent of older workers are employed in jobs with some physical demands or difficult working conditions.[124] The extent of physical demands in a job can vary considerably. For example, only about seven percent of all American workers and six percent of older workers hold highly physically demanding jobs, and this number is projected to decline to about five percent by 2041.[125]

To put this dramatic change of the physical demands of jobs into historical context, many of the jobs held by older workers in the 1960s were in manufacturing, mining, agriculture, and railroads and were highly physically demanding. As these industries contracted and as technology has changed how work gets done over the past fifty years, the total percentage of all workers employed in physically demanding jobs has steadily decreased.[126] Across all industries, jobs requiring some form of physical activity fell from 57 percent in 1971 to 46 percent in 2006.[127]

IV. The Nature and Scope of Age Discrimination in Employment Today

Discrimination today, whether based on age, race, sex or other protected characteristics, frequently derives from stereotypes and unconscious bias,[128] although blatant or explicit discriminatory practices still exist.

A. The Persistent Drivers of Age Discrimination

Given the dramatic changes in our understanding of aging, work, and discrimination, it is time to put aside such outdated assumptions about aging and age discrimination; the ADEA was intended and continues to be an important tool to do just that.

1. Research Demonstrates that Age Does Not Predict Ability

Decades of social science research document that age does not predict one's ability, performance, or interest.[132] Aging and its effect on cognitive abilities is highly individualized, as ability, agility and creativity vary widely among people of the same age.[133] Many older people out-perform or perform as well as young people,[134] and intellectual functions can actually improve with age.[135] While speedy thinking may decline over time, middle-aged brains adapt to reach solutions faster, make sounder judgments, and better navigate the complex world of today.[136] Innovation and creativity span the age spectrum as well.[137]

2. Today, Age Discrimination is More Like, Than Different from, Other Forms of Discrimination.

The notion that age discrimination is different than other forms of discrimination because of different historical origins is a central premise of the Wirtz Report and continues to seep into ADEA jurisprudence today. For example, even recently, a judge questioned a plaintiff's evidence of age discrimination by saying:

No, age is different because we are all going to get old ... but when you're talking about gender or race or ethnicity those are immutable characteristics as the Supreme Court has said. But it's a little bit different because all of us are going to be older or elderly one day.[141]

When examined through today's understanding of how discrimination operates, age discrimination is more like, than different from, other forms of discrimination.

First, as a legal matter, Congress made irrelevant the view of the Wirtz Report that age discrimination was different by using the same words to prohibit age discrimination as it used in Title VII to prohibit discrimination based on race, sex, color, national origin, and religion.[142] Congress clearly viewed employment discrimination as a unified phenomenon suited to a unified legislative solution, regardless of whether the protected characteristic was age, race, sex, or another basis protected by Title VII.

Second, all employment discrimination shares prejudices about the competence of members of the protected group. For example, race discrimination unquestionably originated from a long history of malice, prejudice and intolerance. Yet, race discrimination also derives from negative views and stereotypes about the abilities of workers of a particular race,[143] like age discrimination does.

Third, when one compares age to sex discrimination, there are again important similarities. There is substantial evidence that in the 1960s, people believed that one's gender determined one's abilities, interests and qualifications,[144] just like age. Sex discrimination, like age discrimination, often results from stereotypes about women's abilities and on assumptions about the appropriate roles of women in the workplace and society.[145]

In sum, age discrimination shares a commonality with other forms of discrimination, just as the ADEA and Title VII share common purposes and prohibitions. Thus, this notion that age discrimination is "different" should not justify less protection for older workers in interpreting the ADEA.

B. Prevalence of Age Discrimination

It is difficult to measure with any accuracy the prevalence of discrimination in the workplace. One indicator of the prevalence of age discrimination is based on research of the perception of age discrimination by older workers in surveys. Another indicator is age discrimination claims. Most discriminatory and harassing conduct is unreported,[146] which means charges filed with federal and state enforcement agencies represent a fraction of the likely discrimination that occurs in the workplace.

1. Perceptions of Age Discrimination
ADEA Charges by Gender (Chart 4)
African Americans/Blacks report much higher rates of having experienced age discrimination or knowing someone who had, at 77 percent, compared to 61 percent for Hispanics/Latinos and 59 percent for Whites.[150] More women than men also say older workers face age discrimination.[151]

2. EEOC Charge Data

Older workers facing age discrimination can file ADEA charges with the EEOC or with state and local Fair Employment Practice agencies. While most older workers say they have seen or experienced age discrimination, only 3 percent report having made a formal complaint to someone in the workplace or to a government agency.[155] This suggests vast underreporting of the problem of age discrimination.
ADEA Charges by Age Group (Chart 6)
The demographics of older workers who file ADEA charges have changed markedly since 1967. The most dramatic change is in the gender of those filing ADEA charges, as depicted in Chart 4 below. In 1990, almost twice as many ADEA charges were filed by men than were filed by women. In 2010, the number of women filing age charges surpassed the number of men filing age charges for the first time, a trend that continues today.
ADEA Charges Alleging Age and Race, Age and Sex, Age and Disability Discrimination (Chart 7)
With each passing decade, the racial diversity of those who file age discrimination charges also is growing (Chart 5). The percentages of charges alleging age discrimination filed by Blacks[160] and Asians[161] doubled by 2017 compared to 1990 charge filings. The percentage of ADEA charges filed by Whites declined by over one third (from 68 percent to 42 percent).

Additionally, the age of those filing ADEA charges has changed dramatically (Chart 6). In 1990, workers in the age 40-54 age cohort filed the majority of ADEA charges and workers in the age 65+ cohort filed relatively few. But by 2017, more charges were filed by workers ages 55-64 than the younger age cohort. Moreover, by 2017, the percentage of charges filed by workers age 65 and older was double what it was in 1990.

The percentage of charges alleging age discrimination plus race, sex or disability has also increased dramatically over the past 20 years as the older workforce has become more diverse. (Chart 7).

C. Discriminatory Practices

While the ADEA has eliminated or changed many employment practices that explicitly used age to bar opportunities to older workers, discriminatory practices continue today to deny older workers equal opportunity. Research shows that older workers' continued denial of equal opportunity often derives from negative stereotypes.[162] Indeed, there is strong "evidence that age bias and negative age stereotypes about older workers continue to affect older workers' employment experiences."[163]

1. Discriminatory Discharge, Terms and Conditions, and Harassment are the Most Common Practices Alleged in ADEA Charges.

Unlawful discharge has always been the most common practice asserted in charges filed with the EEOC[164] and that remains true for ADEA charges as well. In fiscal year 2017, 55 percent of ADEA charges alleged discriminatory discharge. Twenty-five years ago, about 45 percent of ADEA charges claimed unlawful discharge. ADEA lawsuits alleging unlawful discharge based on age, including constructive discharge, based on age have similarly dominated ADEA litigation, with one study finding discharges raised in 73 percent of ADEA district court and appellate court cases.[165]

The next most common allegations in ADEA charges have varied over the years. Age-based harassment claims more than tripled by 2017 to 21 percent, compared to 6 percent in 1992. The types of harassment experienced by older workers is often like that experienced by other workers.[166] ADEA charges raising claims of discriminatory terms or conditions nearly doubled to 25 percent in 2017 from 13 percent in 1992. Finally, allegations of discriminatory discipline nearly quintupled to 11.6 percent in 2017 from only 2.5 percent in 1992.

2. Age Discrimination in Hiring Remains a Significant Barrier for Older Workers.

At an EEOC meeting on Promoting Diverse and Inclusive Workplaces in the Tech Sector, the EEOC heard from experts about micro-targeting practices seeking to recruit younger workers. Experts also testified about job postings preferring younger workers as "digital natives," rather than older workers who are referred to as "digital immigrants." [173] They also testified about online application systems that include dates of birth or graduation dates in fields that cannot be bypassed. Such practices may deter and disadvantage older applicants.

3. Mandatory Retirement and Discriminatory Denial of Benefits Have Also Dominated ADEA Litigation.

The legality of early retirement incentives[177] and pension plans[178] that denied or reduced benefits based on age have been frequent claims in ADEA litigation. After the Supreme Court held that the ADEA did not generally prohibit discrimination in employee benefit plans in Public Employees Retirement System v. Betts,[179] Congress enacted the OWBPA[180] to make clear that the ADEA prohibits an employer from denying or reducing benefits based on age, except in specific circumstances sanctioned by the OWBPA.[181]

The ADEA was initially construed to protect retiree health benefits and prohibit the use of Medicare eligibility to determine benefits for retirees in Erie County RetireesAss 'n v. County of Erie, Pennsylvania.[182] Based on concerns that employer-sponsored health benefits would be dropped in their entirety unless employers could use Medicare-eligibility to determine their availability, the EEOC issued a regulatory exemption from the ADEA permitting the coordination of retiree health benefits with Medicare or a comparable state health benefit plan.[183]

4. Intersectional Claims

The EEOC has long recognized the theory of "intersectional discrimination"[184] under both Title VII[185] and the ADEA[186] when an individual is treated differently because he or she belongs to more than one protected category and is subjected to a set of stereotyping unique to his or her status. The availability of an intersectional claim has become increasingly important for older women as more of them experience both age and sex discrimination.[187]

D. Harm of Age Discrimination

The financial and emotional harm of age discrimination on older workers and their families is significant. Once an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and will likely take a significant pay cut if she becomes re-employed.[188] The loss of a job has serious long-term financial consequences as older workers often must draw down their retirement savings while unemployed, and are likely to suffer substantial losses in income if they become re-employed.[189]

Age discrimination also has significant monetary costs for employers. Lawsuits can impose substantial costs for employers for violating the ADEA,[194]which just a few examples demonstrate. The largest ADEA suit to date, Arnett v. California Public Employees' Retirement System,[195] settled for $250,000,000, and a permanent injunction against the state pension system and 1,500 local agencies, for reducing the disability pension benefits of police and firefighters based on age. Sprint Nextel settled an ADEA collective action for $57.5 million for 1700 older workers laid off between 2001 and 2003.[196] An age discrimination lawsuit brought by 129 older workers at the Livermore National Laboratory settled for $37.5 million in 2015.[197]

V. State Law Protections

When Congress was considering the ADEA in 1967, 24 states and Puerto Rico had laws prohibiting age discrimination in the workplace.[201] A majority of those state laws included a prohibition against age discrimination within an omnibus anti-discrimination law that also prohibited discrimination based on race, color, religion, national origin, and sex.[202] Rather than follow the predominant model used by the states that would add age to Title VII, Congress chose to create a separate federal law, the ADEA.

VI. The Recent Fissuring of the ADEA's Ties to Title VII

Experts have testified before the EEOC expressing concerns about Supreme Court decisions in the past decade and a half that have severed the ADEA from its ties to Title VII, by relying on textual differences between the ADEA and Title VII, rather than their shared purposes and prohibitions.[207] The most significant ADEA case that experts point to that divorces the ADEA from Title VII precedent is Gross v. FBL Financial Services, Inc.[208] Gross held that older workers could no longer use the motivating factor framework derived from the same Title VII prohibition[209] shared by the ADEA to prove unlawful age discrimination. Instead, the Supreme Court reasoned that the 1991 addition to Title VII of a provision setting forth a motivating factor framework did not apply to the ADEA because Congress failed to similarly amend the ADEA.[210]

Thus, while individuals with race or sex discrimination claims under Title VII can prove unlawful disparate treatment under either a "but for" causation standard or a "motivating factor" standard, victims of age discrimination are limited to just one -- a "but for" standard.[211] And even though the Supreme Court said in Gross that there is no heightened standard to prove age discrimination,[212] some courts have interpreted Gross as making ADEA cases harder to prove.[213] This can be extremely problematic for older women and older minorities who often bring claims under both the ADEA and Title VII.[214]

VII. Moving Forward: Preventing Age Discrimination in the Workplace

Too many older Americans continue to face discrimination based on persistent stereotypes and outdated assumptions about age and work. Age discrimination is legally wrong and has been since the ADEA took effect five decades ago. But it remains too common and too accepted in today's workplace. While attitudes about older workers, their abilities, and age discrimination have improved somewhat over the past 50 years, much more can and should be done to make age discrimination less prevalent and less accepted.

First and foremost, workplace culture determines whether workers are valued without regard to age or whether they are devalued based on age.[218] The leadership of an organization is obviously critical to creating and fostering a culture that is committed to a multi-generational workplace where all workers can grow and thrive.[219] Workplace cultures that extol ability and reject discriminatory stereotypes and words result in more diverse, productive and engaged workforces.

Second, employers and employees can also help prevent age discrimination in the workplace by recognizing and rejecting stereotypes, assumptions, and remarks about age and older workers just as they reject such stereotypes, assumptions and remarks about someone's sex, race, disability, national origin, or religion.

In addition, the following strategies were recommended by experts at EEOC meetings to avoid age discrimination, increase age diversity in the workplace, and value a multi-generational workforce.

A. Increasing the Age Diversity of the Workforce

Based on research studies and their work with employers, experts recommend several strategies that can prevent biases from entering into recruitment, hiring, and human resource practices. One significant but often overlooked strategy is to include age in diversity and inclusion programs and efforts. A study by PriceWaterhouseCoopers found that 64 percent of firms surveyed in its 2015 Annual Global CEO survey had diversity & inclusion strategies, but only 8 percent of those included age.[220] Yet, the benefits of doing so appear to have strong positive outcomes for both employers and employees.

An initial assessment of an organization's culture, practices, and policies may reveal outdated assumptions about older workers that could taint objective decisionmaking and limit opportunities. The Center on Aging & Work at Boston College, along with AARP, has developed an assessment tool that evaluates organizational strengths and weaknesses in attracting, managing, and retaining a multigenerational workforce.[224]

B. Recruitment and Hiring Strategies

With low unemployment and growing shortages of skilled, qualified workers, hiring older workers can help employers fill what has become known as the "skills gap" -- the lack of trained or experienced workers for higher-skilled jobs. Their employment also furthers economic and social policies that encourage continued work to strengthen personal financial well-being and our economy.[225]

Recruitment practices can avoid age bias by seeking workers of all ages and not limiting qualifications based on age or years of experience. Over 94 percent of working Americans visit companies' social media pages when searching for a job.[226] Websites and social media that include age-diverse photos, graphics, and content demonstrate a commitment to attracting a multi-generational workforce. Applications, whether online or paper, should not ask date of birth or other age-related questions, just as they should not ask an applicant to identify her race or sex.

Training recruiters and interviewers to avoid ageist assumptions and even common perceptions about older workers is critical. For example, the assumption that hiring a younger worker is less expensive and a better return on investment than hiring an older worker is outdated and flawed. Contrary to common perception, older workers do not cost significantly more than younger workers, as structural changes in compensation and benefits have created a more age-neutral distribution of labor costs.[227] And the presumed investment based on the assumption that the younger worker will be with the employer longer is less likely these days. Millennials are leaving their employers, on average, after three years, whereas older workers, on average, provide employers with more stability, longer tenures, and ultimately a greater return on investment.[228]

Experts also recommend an assessment of interviewing strategies to avoid age bias, as studies and experience show that interviewers tend to favor job candidates who remind them of themselves.[229] An age-diverse interview panel for prospective employees may be viewed more positively by candidates and may be less vulnerable to implicit bias. Training interviewers as to how to frame age-neutral questions and using a standard or structured process can help avoid age bias throughout the interview process.[230]

C. Retention Strategies

Effective retention strategies decrease unexpected turnover costs and loss of institutional knowledge, and increase engagement and productivity. Age is positively correlated with employee engagement, as workers age 50 and older have the highest levels of engagement in the workplace.[231] And high employee engagement increases employee productivity.[232]

Experts recommend strategies to provide career counseling, training and development opportunities to workers at all ages and at all stages of their careers. Mixed-age and reverse-age mentoring can increase worker productivity and satisfaction.[233] Workers of all ages value flexible work options that can provide work/life balance at various times in their careers.[234]

Conclusion

The ADEA has helped to bring equality and fairness to the workplace for older workers. But age discrimination persists based on outdated and unfounded assumptions about older workers, aging and discrimination. No one should be denied a job based on stereotypes and it's time to put these outdated assumptions to rest. Ability, experience and commitment matter, not age. To achieve the promise of the ADEA, it's time to recognize the value of age diversity in the workplace and the benefits of a multi-generational workforce.

[2] Pub. L. 88-38, 77 Stat. 56 (1963) (codified at 29 U.S.C. § 206(d)).

[10] "If more skilled workers over 60 stayed in the workforce, it would make a significant impact on reducing the skilled worker shortage in the United States." Written Testimony of John Challenger, CEO, Challenger, Gray & Christmas, Inc., The ADEA 50 -- More Relevant Than Ever, Meeting of the U.S. Equal Employment Opportunity Commission (2017).

[11] H.R. 10144 sought to prohibit "arbitrary employment discrimination because of race, religion, color, national origin, ancestry or age." H.R. Rep. No. 97-1370, 97th Cong. 2d Sess. 2155 (1962).

[12] The amendment to add a prohibition of age discrimination to Title VII failed in the House by a vote of 123 to 94. 110 Cong.Rec. 2596-99 (1964).The Senate rejected a similar amendmentby a vote of 63 to 28. 110 Cong.Rec. 9911-13 (1964). Some ADEA historians claim that the move to add age discrimination to TitleVII was intended to defeat passage, like the move to add sex discrimination. See Daniel P. O'Meara, Protecting The Growing Numbers of Older Workers: The Age Discrimination in Employment Act 11 (1989); Disparate Impact Analysis and the Age Discrimination in Employment Act, 64 Minn. L. Rev. 1038, 1053 (1984); Alfred W. Blumrosen, Interpreting the ADEA: Intent or Impact, Age Discrimination in Employment Act: A Compliance and Litigation Manual for Lawyers and Personnel Practitioners, 106-15 (1982). Historians also disagree on the reasons Congress added sex to Title VII. J. Freeman, How Sex Got into Title VII: Persistent Opportunism as A Maker of Public Policy, 9 Law and Inequality: A Journal of Theory and Practice, 163-184 (1991); M.E. Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for The Issue of Comparable Worth, 19 Duquesne Law Rev. 453-477 (1980).

[13] Civil Rights Act of 1964, Pub. L. No. 88-352, § 715, 78 Stat. 265 (1964).

[29] See Age Discrimination in Employment Act of 1967 , S. Rep. No. 723, 90th Cong. 1st Sess. 13-14 (1967) (statement of Sen. Javits). In the House, John H. Dent and Carl D. Perkins were the leading proponents of the ADEA.

[30] The House approved H.R. 13054 on December 4, 1967 by a vote of 344 to 13. 113 Cong. Rec. 34752 (Dec. 4, 1967). By unanimous consent, the Senate approved amendments to S.830 from the House bill. 113 Cong. Rec. 35055-57 (Dec. 5, 1967). The House, by unanimous consent, concurred on December 6, 1967. 113 Cong. Rec. 35132 (Dec. 6, 1967). President Lyndon B. Johnson signed the bill on December 15, 1967. (113 Cong. Rec. 37125 (Dec. 15, 1967). Pub. L. No. 90-202, 81 Stat. 607 (1967).

[32] As Senator Yarborough, one of the leading sponsors of the ADEA, explained:

a great deal of the problem stems from ignorance: there is simply a widespread irrational belief that once men and women are past a certain age they are no longer capable of performing even some of the most routine jobs.

113 Cong. Rec. 31254 (1967); See Improving the Age Discrimination Law, supra note 5, at III.

[36] "[T]the prohibitions of the ADEA were derived in haec verba from Title VII." Lorillard, 434 U.S. at 584. The Court cited to both prohibitions in Title VII § 703(a)(1) and (2), 42 U.S.C. §2000e-2(a)(1), (2), in comparing the almost identical language in the ADEA's prohibitions §§4(a)(1), (2), 29 U.S.C. §§ 623(a)(1), (2). Id. at n. 12.

[39] "The prohibitions in this Act shall be limited to individuals who are at least forty years of age but less than sixty-five years of age." Pub. L. No. 90-202, § 12 (1967).

[42] The Fair Labor Standards Act Amendments of 1974, § 28(a)(4), expanded the ADEA's definition of "employer" at § 630(b) to include state and local governments of any size and added another new provision, § 633a, to protect federal employees age 40 to 70. Pub. L. No. 93-259, 88 Stat. 74-76 (1974). In contrast, Title VII was amended in 1972 to cover state and local government employers that employ fifteen or more individuals through an addition to the definition of "persons" covered by the Act. Pub. L. No. 92-261, 86 Stat. 103 (1972).

[43] "The committee believes that as a matter of basic civil rights people should be treated in employment based on their individual ability to perform a job rather than based on stereotypes about race, sex, or age." S. REP. 95-493, 95th Cong., 1st Sess. 1977, at 3; 1978 U.S.C.C.A.N. 504, 1977 WL 9644.

Scientific research now indicates that chronological age alone is a poor indicator of ability to perform a job....

... A person with the ability and desire to work should not be denied that opportunity solely because of age. The Act's current age limitation unfairly assumes that age alone provides an accurate measure of an individual's ability to perform work. In fact, the evidence clearly establishes the continued productivity of workers who are 65 years of age and older.

... the arguments for retaining existing mandatory retirement policies are largely based on misconceptions rather than a careful analysis of the facts.

See also Mandatory Retirement: The Social and Human Cost of Enforced Idleness,H.R. Rep. Select Comm. On Aging, 95th Cong. 1st Sess. VII (1977); The Next Steps in Combating Age Discrimination in Employment: With Special Reference to Mandatory Retirement Policy, A Working Paper, S. Spec. Comm. on Aging, 95th Cong. 1st Sess. 1 (1977).

The House and Senate Reports for the 1986 ADEA Amendments cited to a 1985 study by psychologists David Waldman and Bruce Avolio on the relationship between age and performance. The study "found that contrary to popular belief, older workers can be just as productive as their younger counterparts" and found little support for the belief that job performance declines with age. Eliminating Mandatory Retirement, A Report by The Chairman of The Subcomm. on Health and Long-Term Care of The Select Comm. on Aging , H.R. Rep. No. 99-561, at 107-08 (2d Sess. 1986); Working Americans: Equality at Any Age: Hearing Before the S. Spec. Comm. on Aging,99th Cong. (1986).

[45] Pub. L. No. 95-256, § 12(a), 92 Stat. 189 (1978).

[54] See 112 Cong. Rec. 20823 (1966) (statement of Sen. Javits); 113 Cong. Rec. 7076 (1967) (statements of Sen. Javits); Age Discrimination in Employment Act of 1967 , S. Rep. No. 723, at 13-14 (1st Sess. 1967) (statements of Sen. Javits) (opposing Administration's bill which would create a "wholly unnecessary new bureaucracy" with DOL).

[55] See Hearings on S. 830, S. 788 Before the Subcomm. on Labor of the S. Comm. on Labor and Pub. Welfare, 90th Cong. 24, 29, 396 (1967) (statements of Sen. Javits and Sen. Smathers); Age Discrimination in Employment - Proposed Amendments to S.830 Administration Bill, Before the S. Subcomm. On Labor of the Committee on Labor and Public Welfare, 113 Cong. Rec. 7076 (1967) (statement of Sen. Jacob Javits) ("The EEOC is already years behind in disposing of its docket."); Craig Robert Senn, Ending Discriminatory Damages, 64 Ala. L. Rev. 187, 203 (2012) (summarizing legislators' concerns that the EEOC was under-resourced to handle enforcement of the ADEA, given lengthy EEOC charge backlog and "the possibility that age discrimination enforcement would be neglected in favor of other forms of discrimination.").

[56] The Wage and Hour Division of the Department of Labor (DOL) enforced the Equal Pay Act of 1963, 29 U.S.C. § 206, and the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

"There is medical evidence, for example, to support the contention that such is generally not the case. In many instances, an individual at age 60 may be physically capable of performing heavy-lifting on a job, whereas another individual of age 30 may be physically incapable of doing so."

Id.

Equal Employment Opportunity Commission Enforcement of the Age Discrimination in Employment Act: 1979 To 1982, An Information Paper Prepared by the Staff of the S. Spec. Comm. on Aging[59] DOL counted charges based on the number of respondents, while the EEOC counts charges by the numbers of charging parties. Thus, a layoff of 30 employees by a single employer on which ADEA charges have been filed would be counted as one charge by DOL and 30 charges by the EEOC. See S. Spec. Comm. on Aging,, 97th Cong. 2d Sess. 98-691 at 3 (1982).

[62] Message of the President, Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19807, 92 Stat. 3781 (May 9, 1978).

[65] "[T]he Commission has devoted substantially more to its ADEA program than the $3.5 million budget and 119 positions transferred from Labor. Indeed, the Commission transferred Title VII positions into the age enforcement program during both fiscal years 1980 and 1981. The current budgetary allocation for the ADEA program is 128 positions and approximately $14 million." S. Spec. Comm. on Aging, Equal Employment Opportunity Commission Enforcement of the Age Discrimination in Employment Act: 1979 To 1982 , supra note 59, at 3.

[69] See Age Discrimination Claims Assistance Act of 1988, Pub. L. No. 100-283, 102 Stat. 78 (1988). Congress reinstated the rights of charging parties to file lawsuits who had lost that right when the EEOC failed to process ADEA charges within the two or three-year statute of limitation. The ADCAA extended the time for filing lawsuits for an additional 540 days (18 months). Congress authorized a second extension of the ADEA statute of limitations in 1990 when the EEOC again failed to timely process ADEA charges. See also, Age Discrimination Claims Assistance Amendments of 1990, Pub. L. No. 101-504, 104 Stat. 1298 (1990) (providing charging parties an additional 450 days in which to file their own private ADEA lawsuits, while permitting the EEOC to process the backlog of age discrimination charges).

[72] In EEOC v. Wyoming, 460 U.S. 226 (1983), the Supreme Court held that the 1974 extension of the ADEA to state governments as employers was a valid exercise of the Commerce Clause and rejected a Tenth Amendment challenge to the ADEA. However, in Kimel v. Florida Board of Regents, 528 U.S. 62, 78-79 (2000), the Court held that the ADEA did not validly abrogate states' Eleventh Amendment immunity from suit for monetary relief by individuals. Kimel explicitly limits its holding to suits by private individuals and reaffirmed the holding in EEOC v. Wyoming, 460 U.S. 226 (1983), that state and local government employers are covered by the ADEA. See Kimel, 528 U.S. at 91 ("We hold only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity against suits by private individuals.")

[77] See EEOC v. Seasons 52, No. 15-CV-20561-JAL (S.D. Fla. 2018) (consent decree settling claims for failure to hire based on age); Texas Roadhouse,

[78] 29 U.S.C. § 628.

[79] The regulations explaining the waiver requirements of the OWBPA were the product of a negotiated rulemaking, the first time the EEOC had used such a procedure that brought experts together to develop regulations for consideration by the Agency. Waivers of Rights and Claims Under the ADEA,63 Fed. Reg. 30628 (June 5, 1998) (to be codified at 29 C.F.R. § 1625.22).

[80] Coordination of Retiree Health Benefits with Medicare and Sate Health Benefits, 72 Fed. Reg. 72945 (Dec. 2007) (codified at 29 C.F.R. § 1625.32).

[81] Coverage Under the Age Discrimination in Employment Act, 72 Fed. Reg. 36875 (Jul. 2007).

[82] Differentiations Based on Reasonable Factors Other Than Age, 77 Fed. Reg. 19095 (codified at 29 C.F.R. § 1625).

[88] Mitra Toossi, Dep't of Lab., Bureau of Lab. Stat., A Century of Change: The U.S. Labor Force, 1950 - 2050, Table 5, Civilian Labor Force by Sex, Age, Race, and Hispanic Origin, 1950 - 2000 and Projected, 2010 - 2050, Monthly Lab. Rev. 15 (2002). See also Written Statement of Patrick Button, Assistant Professor Dep't of Econ., Tulane U., The ADEA @ 50 -- More Relevant Than Ever, Meeting of the U.S. Equal Employment Opportunity Commission (2017) ("The United States is experiencing an aging population that is increasingly trying to work longer....").

[90] Patrick Purcell, Cong. Research Serv., Older Workers: Employment and Retirement Trends (2007).

[96] From 2008 to 2010, more than three out of every four adults age 65 and over rated their health as good, very good, or excellent. Fed. Interagency Forum on Aging-Related Stat. , Older Americans 2012: Key Indicators of Well-Being (2012).

[97] The qualifying age for full Social Security retirement benefits has been increasing since 2000. In 2020, eligibility for full Social Security retirement benefits will be 67 years of age. CDC, Older Employees in the Workplace, Issue Brief No. 1 (2012) (citing Patrick Purcell, Congressional Research Service, Older Workers: Employment and Retirement Trends (2009)).

[103] A 2017 Gallup survey reported "there has been a seismic shift since 1995 in the age at which non-retirees believe they will retire. In two polls conducted that year, an average of 14% said they expected to retire after 65 and 49% before 65. These percentages have flipped in the last two decades, as the age to start collecting Social Security has risen to 67 and more Americans feel a financial need to stay in the workforce." Gallup, Most U.S. Employed Adults Plan to Work Past Retirement Age (2017).

[107] Workers' expectations regarding when and how they will retire represent a dramatic change from long-held societal notions about fully retiring at age 65. Although the numbers vary based on who was surveyed and the date of the survey, nearly 3 out of 4 workers plan to work past age 65. Gallup, Most U.S. Employed Adults Plan to Work Past Retirement Age (2017). This increase is five times the 14 percent who said this in 1995. Rebecca Riffkin, Gallup, Americans Settling on Older Retirement Age (2015). In the same study, 63 percent plan to work part-time and 11 percent say they will work full-time. Id.Thirteen percent of older workers surveyed say they do not plan to retire at all. Transamerica Center for Retirement Studies, 17th Annual Retirement Survey, 16, 258-60 (2016).

[119] AARP, Staying Ahead of the Curve - The Career and Work Study (2013) (Sample of 1502 workers ages 45-74; defining blue collar as skilled and semi-skilled labor, unskilled labor, and service and protective occupations; white collar as technician/minor administrative, clerical, and sales; and executive/professional as executive/admin/mgmt. jobs, top talent/major or less professional jobs, small business owners, and farmers.)

[120] David Baer, Older Workers: More Likely to Work Part Time, AARP Pub. Pol'y Inst. (Feb. 2015). Some older workers have had to settle for part-time jobs because they could not obtain full-time employment. Id.

[125] Templin, 89 Or. L. Rev. at 1238; Johnson et al., Employment at Older Ages and the Changing Nature of Work at 11, 14.

[128]Barbara F. Reskin, The Proximate Causes of Employment Discrimination, 29 Contemporary Soc. 319, 320 (Vol. 2 March 2000) ("much discrimination stems from normal cognitive processes" of "stereotyping, attribution bias, and evaluation bias" which "introduce sex, race, and ethnic biases into our perceptions, interpretations, recollections, and evaluations of others.").

[132] "Scientific research now indicates that chronological age alone is a poor indicator of ability to perform a job." Amending the Age Discrimination in Employment Act Amendments of 1977, S. Rep. 95-493, 95th Cong. 1st Sess. 2-4 (1977). See Schaie, The Longitudinal Study: A 21-year Exploration of Psychometric Intelligence in Adulthood," in Longitudinal Studies of Adult Psychological Development, 33 (K. W. Schaie, ed. 1983) (studies show no decline in average intelligence at until age 80); McEvoy & Cascio, Cumulative Evidence of the Relationship between Employee Age and Job Performance, 74 J. of Appl. Psych. 11 (1989) (finding age bears no relationship to employee performance); (studies show no decline in average intelligence at least until age 80); Staudinger, Cornelius & Baltes, The Aging of Intelligence: Potential and Limits, 503 The Annals, 43, 45-46 (1989)("Persons of the same chronological age are not identical as to their mental status. There are 70-year-olds who function like 30-year-olds and vice versa."); Diane B. Howelson, Cognitive Skills and the Aging Brain: What to Expect, Cerebrum (Dec. 1, 2015).

[138] Glen P. Kenny, Herbert Groeller, Ryan McGinn, and Andreas D. Flouris, Age, Human Performance, and Physical Employment Standards, 41 Applied Physiology, nutrition, and Metabolism (2016) ("the extent of the decline in physical functioning, and therefore the risk of work-related injuries or illness, is dependent on a myriad of individual factors including lifestyle, level of physical activity and fitness, and general health.")

[143] See Bruno Bettelheim & Morris Janowitz, Soc. Change and Prejudice at 11 (1964). Isis H. Settles, Nicole T. Buchanan, & Stevie C. Y. Yap, Race discrimination in the workplace, at 8, Praeger Handbook on Understanding and Preventing Workplace Discrimination (M. A. Paludi, C. A. Paludi Jr., & E. DeSouza Eds., Westport, CT: Praeger Publishers 2010) ("discrimination - negative behaviors enacted toward members of a particular group - typically stem from prejudiced attitudes and stereotypes"); L. Duke, "White's Racial Stereotypes Persist: Most Retain Negative Beliefs About Minorities, Survey Finds," Washington Post (Jan. 9, 1991), p. A1.

[145] See Price Waterhouse v. Hopkins,490 U.S. 228 (1990); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 708 (1978); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In Los Angeles Dept. of Water and Power v. Manhart, the Supreme Court held that Title VII prohibited a requirement that women make greater pension contributions than men, even though it was based on the accurate assumption that women generally live longer. The Court noted that "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," even those that were true for the class. Id. n. 13. "[E]ven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply." Id. See, e.g., Merritt v. Old Dominion Freight Line, Inc., No. 6:07-CV-27, 2011 WL 322885 (W.D. Va. Feb. 2, 2011) (comment that women unfit to be delivery drivers).

[147] In AARP's 2017 study of age discrimination, 61 percent of those age 45 and older reported seeing or experiencing age discrimination. Perron, supra note 9. This is a slight decrease from the 64.5% reporting personal experience with age discrimination in AARP's 2013 study. See AARP, Staying Ahead of the Curve 2013: AARP Multicultural Work and Career Study Perceptions of Age Discrimination in the Workplace - Ages 45-74 (2013 survey of 1,500 workers age 45-74 reported that sixty four percent said they had seen or experienced age discrimination in the workplace).

[149] Careerealism, a career advice and employment branding site, polled its one million monthly readers in 2015 and 87 percent responded that they thought age discrimination hurt their job search. CAREEREALISM Releases 2015 Age Discrimination Survey Results. See also Perron, supra note 9 (three-quarters of older workers blame age discrimination for their lack of confidence in finding new employment).

[151] In AARP's 2017 survey, 64 percent of women and 59 percent of men say they have seen or experienced age discrimination. While AARP's 2013 survey similarly found more women (72 percent) than men (57 percent) responded that older workers face age discrimination, the 2017 responses show a decline in the perception of age discrimination for women, but an increase in that perception for men.

[156] See The Next Steps in Combating Age Discrimination in Employment: With Special Reference to Mandatory Retirement Policy, A Working Paper, S. Spec. Comm. on Aging, 95th Cong. 1st Sess. 7 (1977).

[158] 18th Ann. Rep. of the U.S. Equal Employment Opportunity Commission, 10 (Sept. 4, 1984).

[160] In 1990, 14 percent of ADEA charges were filed by African Americans, which nearly doubled to 27 percent in 2017.

[161] In 1990, 1 percent of ADEA charges were filed by Asians, which tripled to 3 percent in 2017.

[162] "[N]umerous negative stereotypes about older workers still exist that often prevent or have a negative impact on employment opportunities for older people." See Written Testimony of Dr. Sara J. Czaja, Director, CREATE (Center for Research and Education on Aging and Technology Enhancement), and Director of the Center on Aging at the University of Miami, The ADEA @ 50 -- More Relevant Than Ever, Meeting of the U.S. Equal Employment Opportunity Commission (2017). "Several studies have found evidence of biases against older adults during recruitment and hiring." See Written Testimony of Jacquelyn B. James, supra note 102. See also Written Statement of Michael Campion, Professor, Purdue University, Age Discrimination in the 21st Century -- Barriers to the Employment of Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2009).

[167] CAREEREALISM Releases 2015 Age Discrimination Survey Results, supra note 149; Perron, supra note 9. Yet few older workers file formal complaints of hiring discrimination, as age discrimination is often difficult to detect and to prove. See Perron, supra note 9 (only 3 percent formally complain); Written Testimony of Joseph Sellers, Cohen Milstein Sellers & Toll PLLC, Public Input into the Development of EEOC's Strategic Enforcement Plan, Meeting of the U.S. Equal Employment Opportunity Commission (2012) (hiring discrimination is hard to detect).

[170] Neumark, David, Ian Burn, and Patrick Button, Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment (NBER, Working Paper No. 21669, 2015) cited in Written Testimony of Patrick Button, supra note 88; " Is there age discrimination in hiring?" BLS Monthly Labor Review (April 2017); " Age Discrimination and the Hiring of Older Workers" (Federal Reserve Bank of San Francisco Economic Letter, no. 2017-06, February 27, 2017).

[177] See EEOC v. Minnesota Dep't of Corr., 648 F.3d 910 (8th Cir. 2011) (holding that an age "cliff" that foreclosed any retirement incentive to individuals once they reached age 55 was inconsistent with the purposes of the ADEA.); Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 653 (8th Cir. 2005) (early retirement incentive plan that made employees age 65 or older ineligible for benefits was facially discriminatory). See also Cathy Ventrell-Monsees, Take the Money and Run or It's Too Late Baby: Early Retirement Incentives and the Age Discrimination in Employment Act, 29 Univ. of Memphis L.R. 783 (1999) (collecting cases).

[178] See EEOC v. Baltimore Cty., 747 F.3d 267 (4th Cir. 2014) (requirement that older new-hires make larger pension contributions than younger new-hires for the same benefits violated ADEA). In a series of suits against New York municipal volunteer fire departments, EEOC challenged the denial of service credit for volunteer firefighters who worked past the entitlement age for retiremen t benefits. EEOC v. Bayville Fire Co., No. 07-cv-4472 (E.D.N.Y. consent decree entered Apr. 8, 2010); EEOC v. Brentwood Fire Dep't, No. 09-cv-3298 (E.D.N.Y. consent decree entered Mar. 14, 2011); EEOC v. Village of Minneola, No. 08-cv-973 (E.D.N.Y. consent decree entered Jan. 20, 2010); EEOC v. Selden Fire Dist., No. 08-cv-3974 (E.D.N.Y. consent decree entered Apr. 16, 2010); EEOC v. Eaton's Neck Fire Dist., No. 08-cv-5089 (E.D.N.Y. consent decree entered Oct. 30, 2009); EEOC v. Oyster Bay Fire Dep't, No. 09-cv-3297 (E.D.N.Y. consent decree entered Sep. 16, 2011); EEOC v. Amityville Fire Dep't, No. 09-cv-3742 (E.D.N.Y. consent decree entered Mar. 15, 2011); EEOC v. Village of N. Syracuse, No. 12-cv-1465 (N.D.N.Y. consent decree entered Apr. 3, 2013). See also Kentucky Retirement Systems v. EEOC, 554 U.S. 135, 143 (2008); Arnett v. California Public Employees' Retirement System, 179 F.3d 690 (9th Cir. 1999) (injunction against CalPERS and some 1500 local agencies from enforcing a 1980 statue that reduced disability pension benefits of older police officers and firefighters from 50 percent of final compensation to as little as 13 percent); AARP v. Farmers Grp. Inc., 943 F.2d 996 (9th Cir. 1991) (affirming summary judgment and award of liquidated damages to employees who continued working past age 65 but were denied profit sharing and pension contributions).

[179] 492 U.S. 158 (1989). The Betts decision caused the dismissal of many pending ADEA benefits cases that had been brought by the EEOC and private litigants. See Age Discrimination in Employee Benefit Plans: The Impact of the Betts Decision: Joint Hearing Before the Select Comm. on Aging and the Subcomms. on Employment Opportunities and Labor-Management Relations of the H. Comm. on Education and Labor, 101 Cong. (1989) (statement of Charles A. Shanor, General Counsel of the U.S. Equal Employment Opportunity Commission that the EEOC had 30 cases pending in trial and appellate courts, half of which would require dismissal due to the Betts decision; statement of Robert Laufman, Attorney at Law, Laufman, Rauh, and Gerhardstein) reprinted in 2 EEOC legislative history of the older workers benefit protection act of 1990 at 743, 732 (1991).

[180] Pub. L. No. 101-433, 104 Stat. 978.

[181] The OWBPA codified the specific language of the equal benefit or equal cost rule from the EEOC's regulations, 29 U.S.C. § 623(f)(2)(B)(i) and 29 C.F.R. § 1625.10, and provided narrow exceptions for early retirement incentives and the coordination of severance benefits.

[183] 29 C.F.R. § 1625.32 (2003). The exemption was upheld in a lawsuit challenging it. AARP v. EEOC, 489 F.3d 558 (3d Cir. 2007).

[194] Research on the success rate of ADEA plaintiffs prior to the Supreme Court's decision in Gross v. FBL shows higher rates of success in the 1980s and 1990s than more recent decades. See Eglit, supra note 164. (analysis of ADEA cases decided in 1996 shows older workers prevailed in 29 percent of substantive ADEA cases at the appellate level and 25 percent at the district court level; and had a 90 percent win rate in jury trials. Id. at 655 (recognizing that the strongest cases survive summary judgment, but often settle prior to trial). Another study of data collected by the Administrative Office of the U.S. Courts for 1998-2001, ADEA plaintiffs won 21 percent of bench trials while the win rate for bench trials in employment discrimination cases overall was 26 percent. Kohrman & Hayes, Employers Who Cry "RIF" and the Courts That Believe Them, supra note 8, at 153.

[195] 179 F.3d 690 (9th Cir. 1999).

[201] Age Discrimination in Employment Act of 1967, S.Rep. No. 723, 90th Cong. 1st Sess. 2 (1967); H.R.Rep. No. 805, 90th Cong. 1st Sess. 2 (1967).

[202] Colo. Rev. Stat. § 24-34-40 (1903); Conn. Gen. Stat. § 46a-60 (1965); 19 Del. Code § 711 (1960); Haw. Rev. Stat. § 378-2 (1965); La. Rev. Stat. § 23:321 (1934), Mass. Gen. Laws Ch. 151B (1937) (amended in 1950); N.J. Stat. § 10:5-12; N.Y. Exec. Law § 296 (1958); Ohio Rev. Code §4112.02 (1961); Or. Rev. Stat. § 659A.030 (through Leg. Sess. 2011); 43 Pa. Stat. § 955 (1956); Wash. Rev. Code § 49.60.180 (1961); Wis. Stat. §§ 111.321-322 (1959); P.R. Laws Ann. tit. 29, § 146 (1960).

[203] Arkansas' and Mississippi's laws only apply to state government employees. Six states have stand-alone age discrimination laws separate from other employment discrimination laws (Alabama, Arkansas, Georgia, Indiana, Kansas, and Nebraska).

[204] See Diaz v. Jiten Hotel Management, Inc., 671 F.3d 78 (1st Cir. 2012) ("There is just one Massachusetts statute that outlaws both age and gender discrimination (Chapter 151B)) (holding Gross does not apply to state law claim); Alamo v. Practice Management Information Corp., 148 Cal. Rptr. 3d 151, 161 (Cal. Ct. App. 2012) (holding the California Fair Employment and Housing Act prohibits age and other protected classes and declined to follow Grossin considering the proper standard of causation under FEHA); Wagner v. Board of Trustees for Connecticut State University, 2012 WL 668544 (Superior Ct. 2012) ("Given the legislature's decision to include multiple types of unlawful employment discrimination within a single statutory provision without setting out distinctive standards for the different types, the logical conclusion is that it intended that the same standard of proof be applied to all the types of discrimination.").

[207] Written Testimony of Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania State University Dickinson School of Law, Impact of Economy on Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2010); Written Testimony of R. Scott Oswald, Principal, The Employment Law Group, Impact of Economy on Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2010); Written Statement of Cathy Ventrell-Monsees, President Workplace Fairness, Age Discrimination in the 21st Century -- Barriers to the Employment of Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2009). See Appendix B for a complete list of ADEA Supreme Court decisions, and at https://www.eeoc.gov/eeoc/history/adea50th/supreme-court.cfm.

[208] 557 U.S. 167, 174 (2009).

[211] Several experts have examined the flaws they see in the Gross decision and the harm it has caused. See Mark R. Deethard, Life After Gross: Creating A New Center for Disparate Treatment Proof Structures, 72 La. L. Rev. 178 (2011); Michael Foreman, Gross v. FBL Financial Services - Oh So Gross! 40 U. Mem. L. Rev. 681 (2010); David Sherwyn & Michael Heisse, The Gross Beast of Burden of Proof: Experimental Evidence on How the Burden of Proof Influences Employment Discrimination Case Outcomes, 42 Ariz. St. L. J. 901 (2010).

[213] See Sherwyn, supra note 211; Written Testimony of Michael Foreman, supra note 207; Written Testimony of R. Scott Oswald, supra note 207. The retrial of Mr. Gross' case demonstrates the difficulties resulting from the Supreme Court's decision. Mr. Gross prevailed in his first jury trial when the jury was given a motivating factor instruction. In the second trial when the jury considered the exact same evidence but was instructed to apply a "but for" standard of causation rather than the motivating factor standard, the jury ruled against Mr. Gross -- that he had not proven unlawful discrimination under the ADEA. Gross v. FBL Financial Servs., Inc., 3498 Fed.Appx. 971, 972-73 (8th Cir. 2012).

[218] "Workplace culture has the greatest impact in allowing harassment to flourish, or conversely, in preventing harassment." Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs, Chai R. Feldblum & Victoria A. Lipnic, at v, U.S. Equal Employment Opportunity Commission (June 2016). Culture is especially important with respect to age discrimination that often arises from an unconscious application or stereotyped notion of ability. See Rebecca Hanner White & Linda Hamilton Krieger, Whose Motive Matters? Discriminating in Multi-Actor Employment Decision-Making, 61 La. L. Rev. 495, 508-09 (2001).

[225] In an extensive study of the economic effects of the aging population, the National Research Council of the National Academy of Sciences recommended encouraging people to work longer and to postpone retirement for their own financial security and for the benefit to the economy of prolonged employment. See Aging and the Macroeconomy: Long-Term Implications of an Older Population, Comm. on the Long‐Run Macro‐Econ. Effects of the Aging U.S. Population Study Requested by U.S. Cong.; funded by U.S. Treasury and Nat'l Inst. on Aging(2012).

[226] iCIMS, The Modern Job Seeker Report (2017).

[229] John Challenger, CEO of Challenger, Gray & Christmas, a firm specializing in recruitment and placement, testified before the EEOC that "[r]ecruiting and talent management gatekeepers in many companies' staffing departments may not identify with or promote older applicants. If the initial interviewer cannot picture the older job seeker 'fitting in,' he or she will likely pass that applicant over for the position." Written Testimony of John Challenger supra note 10. Challenger recommended educating recruitment and talent managers on the benefits of employing older workers, and providing financial incentives to improve age-diverse recruitment and hiring. Id. See also Written Testimony of Jacquelyn B. James, supra note 102.

[231] See Written Testimony of Laurie A. McCann, AARP Foundation Litigation, Promoting Diverse and Inclusive Workplaces in the Tech Sector, Meeting of the U.S. Equal Employment Opportunity Commission, n. 19 (2016).

[234] See Written Testimony of Cornelia Gamlem, supra note 220 ("[O]ffering nontraditional scheduling options for employees not only improves work-life balance for the employees, but it also allows organizations to recruit and retain motivated workers who may not be able or willing to work a traditional nine-to-five schedule.")

by Victoria A. Lipnic June 2018
Acting Chair
U.S. Equal Employment Opportunity Commission
Dear Reader,

This month marks the 50th anniversary of the effective date of the Age Discrimination in Employment Act (the ADEA) -- one of the premier statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

When I first joined the EEOC in April 2010, the job market was very different than it is today. The effects of the Great Recession were still being widely felt throughout the economy, and predictions were that it would take the nation 10 years or more to recover from steep job losses. At the EEOC, we were concerned that these job losses would hit older workers particularly hard.

Accordingly, shortly after I joined the Commission, one of the first public Commission meetings we held in November 2010, was about the " Impact of the Economy on Older Workers."

Fast forward to today, and as of this month, the nation is experiencing its lowest unemployment rate in 18 years. Instead of shedding hundreds of thousands of jobs each month, the economy is gaining them. This is very good news for America's workers.

But consider this: older workers who lose a job have much more difficulty finding a new job than younger workers. A 54-year-old worker who may have lost his job in early 2008 at the beginning of the Great Recession is now 64 years old. The average unemployment duration for a 54-year-old was almost a year, and it may have taken that person two or three years to find a new job. Further, that new job may not have been on a par with the one he had before. To make up for that financial loss, he will likely need to work longer than originally planned.

Now consider a 54-year-old worker who loses her job in today's economy. Today, jobs are plentiful and conditions are much more favorable for finding new jobs compared to 10 years ago. But, there is one constant for today's 54-year-old and the one from 10 years ago -- age discrimination.

As experts testified at the EEOC's meeting in June 2017 on The ADEA @ 50 -- More Relevant Than Ever, age discrimination remains a significant and costly problem for workers, their families, and our economy.

A few additional points for your consideration. Today's Baby Boomers range in age from 54 to 72 and because of that nearly 20-year span in age, they have widely different considerations about work and retirement. While about 10,000 Baby Boomers retire every day, many have inadequate savings for retirement. Work life has changed dramatically since Boomers entered the workforce. Instead of a career spanning one industry and a few positions as was expected at the beginning of their careers, most workers today are expected to have 11 different jobs in the modern, dynamic economy. Right behind the Boomers, the leading edge of Generation X are now in their early 50's. And, in 2016, Millennials surpassed the Baby Boomers as the largest segment of the workforce in 2016.

The scene having now been set, I offer this report, marking the 50th anniversary of when the ADEA took effect, culminating a year-long recognition by the EEOC of the importance of the ADEA as a significant civil rights law. While it is not exhaustive (as there are treatises devoted to the ADEA, after all), it is meant to serve as a guide to the history and significant developments of the law.

I hope the report also serves to put to rest outdated assumptions about older workers (who should more aptly be described as "experienced workers") and about age discrimination, which harm workers, their families and our economy. Today's experienced workers are healthier, more educated, and working and living longer than previous generations. Age-diverse teams and workforces can improve employee engagement, performance, and productivity. Experienced workers have talent that our economy cannot afford to waste.

I want to thank the staff at the EEOC for their contributions to this report, especially Cathy Ventrell-Monsees, whose passion for all things ADEA is priceless (and perhaps ageless).

Victoria A. Lipnic
Acting Chair
U.S. Equal Employment Opportunity Commission

June 2018

I. Overview

In passing the ADEA, Congress recognized that age discrimination was caused primarily by unfounded assumptions that age impacted ability.[4] To prevent and stop such arbitrary discrimination, the ADEA requires employers to consider individual ability, rather than assumptions about age, in making an employment decision.

A few years after the ADEA was enacted, the Senate Special Committee on Aging noted that the "ADEA was enacted, not only to enforce the law, but to provide the facts that would help change attitudes."[5] It was commonly assumed that at some age and in some jobs, age limited the abilities of older workers.[6] Today we ask: have attitudes about older workers, their abilities, and age discrimination changed in the wake of the ADEA over the past 50 years? Have employment practices changed to promote the employment of older workers?

This report examines the current state of age discrimination and older workers in the U.S. 50 years after the ADEA took effect in June 1968. It begins with a brief review of the history of the ADEA and its enforcement by the Department of Labor (DOL) and the EEOC. It describes the significant changes in who the older worker of today is compared to the typical older worker of 1967.Today's older workers are more diverse and more educated than previous generations. They are healthier and working and living longer. The women and men confronting age discrimination today are in all parts of our country -- in rural and urban communities, in blue and white-collar jobs, in service and tech industries, and are of all races, ethnicities and income.

This report acknowledges the significant harm and costs to older workers, their families, and employers that age discrimination causes. It is time to put to rest outdated and unfounded assumptions about age, older workers, and discrimination. Changing practices can help change attitudes. Thisreport concludes with promising practices for employers to not only avoid age discrimination, but to recognize the value of a multi-generational workforce. Simply put, our economy cannot afford to waste the knowledge, talent, and experience of older workers.[10]

II. A Brief History of the ADEA

A. The 1965 Wirtz Report

The Wirtz Report examined the nature, scope, and consequences of age discrimination in the workplace of the 1960s. It found that employers believed age impacted ability. It also found that without any factual basis or consideration of individual abilities, employers routinely barred workers in their 40s, 50s, and 60s from a wide range of jobs.[15]

The Wirtz Report found that one-half of employers used age limits to deny jobs to workers age 45 and older.[19] It found vast differences in perceptions of age and physical ability with some employers refusing to hire workers after age 25 and others hiring workers until age 60 for jobs involving comparable physical capabilities.[20]

Finally, the Wirtz Report considered the significant consequences of age discrimination on older workers, which it described as hardship and frustration, and on the economy with billion dollar costs in unemployment and early Social Security payouts, plus lost production and earnings.[26] The Report concluded with recommendations for a national policy against arbitrary discrimination in employment on the basis of age, actions to modify institutional arrangements that disadvantaged older workers, and actions to increase the hiring of older workers.[27]

B. The 1967 ADEA

Recognizing the challenge of changing both employment practices and attitudes about age and ability,[32] Congress set forth ambitious purposes for the ADEA:

It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.[33]

Congress crafted a statute based on provisions from both Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act (FLSA).[34] The ADEA shares Title VII's purpose to eliminate discrimination from the workplace.[35] The ADEA's prohibitions were taken verbatim from Title VII,[36] as was its narrow exception for the use of age as a bona fide occupational qualification (BFOQ).[37] Courts interpret this language from Title VII, including its prohibitions and the BFOQ exception, to apply with "equal force" to the ADEA's substantive provisions.[38] The remedies of the ADEA, by contrast, flow from the FLSA. When initially enacted, Congress limited ADEA coverage to individuals age 40 to 64[39] and again directed the Secretary of Labor to study the ages protected by the statute.[40]

C. Amendments to the ADEA[41]

In its first decade, the ADEA was expanded to cover federal, state and local government employees.[42] Congress sought to provide older workers with the same basic civil rights as other workers.[43]

With each significant amendment to the ADEA, Congress laid out the scientific evidence refuting any assumed correlation between age and ability.[44] At the same time, however, the early versions of the ADEA essentially fostered the belief that age affected ability by capping the age of coverage -- initially at 65, and then at age 70 in 1978.[45] These age caps on coverage permitted employers to deny jobs to the oldest workers and to force workers to retire based solely on age.[46] Congress finally resolved this tension in the 1986 amendments to the ADEA, which removed the age-70 cap on coverage.[47] Congress supported removal of the age-70 cap with both scientific[48] and public opinion evidence for the fact that age is not predictive of job-related ability or performance.[49]

The most extensive revisions to the ADEA occurred in 1990 when Congress enacted the Older Workers Benefit Protection Act of 1990 (OWBPA)[50] in response to the Supreme Court's decision in Public Employees Retirement System of Ohio v. Betts.[51] The OWBPA amended the ADEA to restore its original congressional intent to prohibit age discrimination in employee benefits,[52] and established new minimum standards for voluntary waivers and releases of ADEA claims or rights.[53]

D.Enforcement of the ADEA

1. Department of Labor (1968 - 1979)

2. Equal Employment Opportunity Commission (1979 - Present)

III. Demographics of the Older American Workforce

A. Significant Growth in the Older Workforce

Today's US labor force has doubled in size,[87] and is older, more diverse, more educated, and more female than it was 50 years ago.[88]

Age of Civilian US Labor Force (Chart 1):

These trends are expected to continue for decades.[89] One of the most notable changes in the American workforce over the past 50 years is that it has aged significantly with the aging of the Baby Boom generation (79 million people) over that time.[90]

Increased labor force participation by older women is a significant factor in this growth of the older workforce. Women age 55 and older are projected to make up over 25 percent of the women's labor force by 2024, which is almost double their share from 2000. BLS also forecasts that twice as many women over 55 will be in the labor force as women ages 16-24 by 2024. BLS also estimates that women over 65 will make up roughly the same percentage of the female workforce as older men do of the male workforce.[94]
Change in Racial/Ethnic Composition of Labor Force Participants Ages 65+, 1971 - 2017 (Chart 3)
The Great Recession of 2007-2009 [100](also known as the Great Dislocation[101]) forced many older workers to revise their retirement plans and to work longer to recoup drained retirement accounts and lost savings. It left many older workers less confident that they would have sufficient income for a comfortable retirement.[102] As a result, the Great Recession flipped retirement plans and expectations for older workers. [103] Prior to 2009, most Americans planned to retire before age 65.[104] Since then, most say they will retire after age 65.[105]

Unfortunately, retirement expectations frequently do not pan out. For example, one study reports that while 40 percent of workers planned to work until age 70 or later, only 4 percent actually do.[106] Unexpected events such as ill health, caregiving responsibilities, getting laid off, and age discrimination can thwart the best-laid plans.

B. Increasing Diversity of the Older Worker Population

Change in Racial/Ethnic Composition of Labor Force Participants Ages 55-64, 1971 - 2017 (Chart 2)[115]

C. Older Workers are Employed in Many Occupations and Industries

The 1965 Wirtz Report noted that older workers were more likely to be employed in coal mining, agriculture, and railroads, and in older manufacturing industries such as textiles, leather, apparel, footwear, and food.[116] Today, workers ages 55 and older are employed across many types of occupations.[117] More than 42 percent of older workers are in management, professional, and related occupations, a somewhat higher proportion than that for all workers.[118] Thirty-six percent of older workers are engaged in blue collar work.[119] Workers age 65 and older are in part-time jobs at more than double the rate of younger workers, but they are increasingly seeking and obtaining full-time employment.[120] Finally, an increasing number of older workers are self-employed; the rate of self-employment is much higher for older than for younger workers.[121]

The five most common jobs for men and women age 62 and older are:[122]

Men

Women

Top occupations

% of older workers

Top occupations

% of older workers

Delivery workers and truck drivers

3.95

Teachers, except postsecondary

6.30

Janitors and building cleaners

2.99

Secretaries and administrative assistants

6.04

Farmers and ranchers

2.58

Personal care aides

3.60

Postsecondary teachers

2.39

Registered nurses

3.45

Lawyers

2.37

Child care workers

3.36

Notably, many of the most common jobs held by older workers require a college education (e.g., teachers, lawyers, nurses), and/or are physically demanding (e.g., delivery workers, janitors, aides, and nurses.) [123]

Today, it is estimated that about 44 percent of older workers are employed in jobs with some physical demands or difficult working conditions.[124] The extent of physical demands in a job can vary considerably. For example, only about seven percent of all American workers and six percent of older workers hold highly physically demanding jobs, and this number is projected to decline to about five percent by 2041.[125]

To put this dramatic change of the physical demands of jobs into historical context, many of the jobs held by older workers in the 1960s were in manufacturing, mining, agriculture, and railroads and were highly physically demanding. As these industries contracted and as technology has changed how work gets done over the past fifty years, the total percentage of all workers employed in physically demanding jobs has steadily decreased.[126] Across all industries, jobs requiring some form of physical activity fell from 57 percent in 1971 to 46 percent in 2006.[127]

IV. The Nature and Scope of Age Discrimination in Employment Today

Discrimination today, whether based on age, race, sex or other protected characteristics, frequently derives from stereotypes and unconscious bias,[128] although blatant or explicit discriminatory practices still exist.

A. The Persistent Drivers of Age Discrimination

Given the dramatic changes in our understanding of aging, work, and discrimination, it is time to put aside such outdated assumptions about aging and age discrimination; the ADEA was intended and continues to be an important tool to do just that.

1. Research Demonstrates that Age Does Not Predict Ability

Decades of social science research document that age does not predict one's ability, performance, or interest.[132] Aging and its effect on cognitive abilities is highly individualized, as ability, agility and creativity vary widely among people of the same age.[133] Many older people out-perform or perform as well as young people,[134] and intellectual functions can actually improve with age.[135] While speedy thinking may decline over time, middle-aged brains adapt to reach solutions faster, make sounder judgments, and better navigate the complex world of today.[136] Innovation and creativity span the age spectrum as well.[137]

2. Today, Age Discrimination is More Like, Than Different from, Other Forms of Discrimination.

The notion that age discrimination is different than other forms of discrimination because of different historical origins is a central premise of the Wirtz Report and continues to seep into ADEA jurisprudence today. For example, even recently, a judge questioned a plaintiff's evidence of age discrimination by saying:

No, age is different because we are all going to get old ... but when you're talking about gender or race or ethnicity those are immutable characteristics as the Supreme Court has said. But it's a little bit different because all of us are going to be older or elderly one day.[141]

When examined through today's understanding of how discrimination operates, age discrimination is more like, than different from, other forms of discrimination.

First, as a legal matter, Congress made irrelevant the view of the Wirtz Report that age discrimination was different by using the same words to prohibit age discrimination as it used in Title VII to prohibit discrimination based on race, sex, color, national origin, and religion.[142] Congress clearly viewed employment discrimination as a unified phenomenon suited to a unified legislative solution, regardless of whether the protected characteristic was age, race, sex, or another basis protected by Title VII.

Second, all employment discrimination shares prejudices about the competence of members of the protected group. For example, race discrimination unquestionably originated from a long history of malice, prejudice and intolerance. Yet, race discrimination also derives from negative views and stereotypes about the abilities of workers of a particular race,[143] like age discrimination does.

Third, when one compares age to sex discrimination, there are again important similarities. There is substantial evidence that in the 1960s, people believed that one's gender determined one's abilities, interests and qualifications,[144] just like age. Sex discrimination, like age discrimination, often results from stereotypes about women's abilities and on assumptions about the appropriate roles of women in the workplace and society.[145]

In sum, age discrimination shares a commonality with other forms of discrimination, just as the ADEA and Title VII share common purposes and prohibitions. Thus, this notion that age discrimination is "different" should not justify less protection for older workers in interpreting the ADEA.

B. Prevalence of Age Discrimination

It is difficult to measure with any accuracy the prevalence of discrimination in the workplace. One indicator of the prevalence of age discrimination is based on research of the perception of age discrimination by older workers in surveys. Another indicator is age discrimination claims. Most discriminatory and harassing conduct is unreported,[146] which means charges filed with federal and state enforcement agencies represent a fraction of the likely discrimination that occurs in the workplace.

1. Perceptions of Age Discrimination
ADEA Charges by Gender (Chart 4)
African Americans/Blacks report much higher rates of having experienced age discrimination or knowing someone who had, at 77 percent, compared to 61 percent for Hispanics/Latinos and 59 percent for Whites.[150] More women than men also say older workers face age discrimination.[151]

2. EEOC Charge Data

Older workers facing age discrimination can file ADEA charges with the EEOC or with state and local Fair Employment Practice agencies. While most older workers say they have seen or experienced age discrimination, only 3 percent report having made a formal complaint to someone in the workplace or to a government agency.[155] This suggests vast underreporting of the problem of age discrimination.
ADEA Charges by Age Group (Chart 6)
The demographics of older workers who file ADEA charges have changed markedly since 1967. The most dramatic change is in the gender of those filing ADEA charges, as depicted in Chart 4 below. In 1990, almost twice as many ADEA charges were filed by men than were filed by women. In 2010, the number of women filing age charges surpassed the number of men filing age charges for the first time, a trend that continues today.
ADEA Charges Alleging Age and Race, Age and Sex, Age and Disability Discrimination (Chart 7)
With each passing decade, the racial diversity of those who file age discrimination charges also is growing (Chart 5). The percentages of charges alleging age discrimination filed by Blacks[160] and Asians[161] doubled by 2017 compared to 1990 charge filings. The percentage of ADEA charges filed by Whites declined by over one third (from 68 percent to 42 percent).

ADEA Charges by Race (Chart 5)

Additionally, the age of those filing ADEA charges has changed dramatically (Chart 6). In 1990, workers in the age 40-54 age cohort filed the majority of ADEA charges and workers in the age 65+ cohort filed relatively few. But by 2017, more charges were filed by workers ages 55-64 than the younger age cohort. Moreover, by 2017, the percentage of charges filed by workers age 65 and older was double what it was in 1990.

The percentage of charges alleging age discrimination plus race, sex or disability has also increased dramatically over the past 20 years as the older workforce has become more diverse. (Chart 7).

C. Discriminatory Practices

While the ADEA has eliminated or changed many employment practices that explicitly used age to bar opportunities to older workers, discriminatory practices continue today to deny older workers equal opportunity. Research shows that older workers' continued denial of equal opportunity often derives from negative stereotypes.[162] Indeed, there is strong "evidence that age bias and negative age stereotypes about older workers continue to affect older workers' employment experiences."[163]

1. Discriminatory Discharge, Terms and Conditions, and Harassment are the Most Common Practices Alleged in ADEA Charges.

Unlawful discharge has always been the most common practice asserted in charges filed with the EEOC[164] and that remains true for ADEA charges as well. In fiscal year 2017, 55 percent of ADEA charges alleged discriminatory discharge. Twenty-five years ago, about 45 percent of ADEA charges claimed unlawful discharge. ADEA lawsuits alleging unlawful discharge based on age, including constructive discharge, based on age have similarly dominated ADEA litigation, with one study finding discharges raised in 73 percent of ADEA district court and appellate court cases.[165]

The next most common allegations in ADEA charges have varied over the years. Age-based harassment claims more than tripled by 2017 to 21 percent, compared to 6 percent in 1992. The types of harassment experienced by older workers is often like that experienced by other workers.[166] ADEA charges raising claims of discriminatory terms or conditions nearly doubled to 25 percent in 2017 from 13 percent in 1992. Finally, allegations of discriminatory discipline nearly quintupled to 11.6 percent in 2017 from only 2.5 percent in 1992.

2. Age Discrimination in Hiring Remains a Significant Barrier for Older Workers.

At an EEOC meeting on Promoting Diverse and Inclusive Workplaces in the Tech Sector, the EEOC heard from experts about micro-targeting practices seeking to recruit younger workers. Experts also testified about job postings preferring younger workers as "digital natives," rather than older workers who are referred to as "digital immigrants." [173] They also testified about online application systems that include dates of birth or graduation dates in fields that cannot be bypassed. Such practices may deter and disadvantage older applicants.

3. Mandatory Retirement and Discriminatory Denial of Benefits Have Also Dominated ADEA Litigation.

The legality of early retirement incentives[177] and pension plans[178] that denied or reduced benefits based on age have been frequent claims in ADEA litigation. After the Supreme Court held that the ADEA did not generally prohibit discrimination in employee benefit plans in Public Employees Retirement System v. Betts,[179] Congress enacted the OWBPA[180] to make clear that the ADEA prohibits an employer from denying or reducing benefits based on age, except in specific circumstances sanctioned by the OWBPA.[181]

The ADEA was initially construed to protect retiree health benefits and prohibit the use of Medicare eligibility to determine benefits for retirees in Erie County RetireesAss 'n v. County of Erie, Pennsylvania.[182] Based on concerns that employer-sponsored health benefits would be dropped in their entirety unless employers could use Medicare-eligibility to determine their availability, the EEOC issued a regulatory exemption from the ADEA permitting the coordination of retiree health benefits with Medicare or a comparable state health benefit plan.[183]

4. Intersectional Claims

The EEOC has long recognized the theory of "intersectional discrimination"[184] under both Title VII[185] and the ADEA[186] when an individual is treated differently because he or she belongs to more than one protected category and is subjected to a set of stereotyping unique to his or her status. The availability of an intersectional claim has become increasingly important for older women as more of them experience both age and sex discrimination.[187]

D. Harm of Age Discrimination

The financial and emotional harm of age discrimination on older workers and their families is significant. Once an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and will likely take a significant pay cut if she becomes re-employed.[188] The loss of a job has serious long-term financial consequences as older workers often must draw down their retirement savings while unemployed, and are likely to suffer substantial losses in income if they become re-employed.[189]

Age discrimination also has significant monetary costs for employers. Lawsuits can impose substantial costs for employers for violating the ADEA,[194]which just a few examples demonstrate. The largest ADEA suit to date, Arnett v. California Public Employees' Retirement System,[195] settled for $250,000,000, and a permanent injunction against the state pension system and 1,500 local agencies, for reducing the disability pension benefits of police and firefighters based on age. Sprint Nextel settled an ADEA collective action for $57.5 million for 1700 older workers laid off between 2001 and 2003.[196] An age discrimination lawsuit brought by 129 older workers at the Livermore National Laboratory settled for $37.5 million in 2015.[197]

V. State Law Protections

When Congress was considering the ADEA in 1967, 24 states and Puerto Rico had laws prohibiting age discrimination in the workplace.[201] A majority of those state laws included a prohibition against age discrimination within an omnibus anti-discrimination law that also prohibited discrimination based on race, color, religion, national origin, and sex.[202] Rather than follow the predominant model used by the states that would add age to Title VII, Congress chose to create a separate federal law, the ADEA.

VI. The Recent Fissuring of the ADEA's Ties to Title VII

Experts have testified before the EEOC expressing concerns about Supreme Court decisions in the past decade and a half that have severed the ADEA from its ties to Title VII, by relying on textual differences between the ADEA and Title VII, rather than their shared purposes and prohibitions.[207] The most significant ADEA case that experts point to that divorces the ADEA from Title VII precedent is Gross v. FBL Financial Services, Inc.[208] Gross held that older workers could no longer use the motivating factor framework derived from the same Title VII prohibition[209] shared by the ADEA to prove unlawful age discrimination. Instead, the Supreme Court reasoned that the 1991 addition to Title VII of a provision setting forth a motivating factor framework did not apply to the ADEA because Congress failed to similarly amend the ADEA.[210]

Thus, while individuals with race or sex discrimination claims under Title VII can prove unlawful disparate treatment under either a "but for" causation standard or a "motivating factor" standard, victims of age discrimination are limited to just one -- a "but for" standard.[211] And even though the Supreme Court said in Gross that there is no heightened standard to prove age discrimination,[212] some courts have interpreted Gross as making ADEA cases harder to prove.[213] This can be extremely problematic for older women and older minorities who often bring claims under both the ADEA and Title VII.[214]

VII. Moving Forward: Preventing Age Discrimination in the Workplace

Too many older Americans continue to face discrimination based on persistent stereotypes and outdated assumptions about age and work. Age discrimination is legally wrong and has been since the ADEA took effect five decades ago. But it remains too common and too accepted in today's workplace. While attitudes about older workers, their abilities, and age discrimination have improved somewhat over the past 50 years, much more can and should be done to make age discrimination less prevalent and less accepted.

First and foremost, workplace culture determines whether workers are valued without regard to age or whether they are devalued based on age.[218] The leadership of an organization is obviously critical to creating and fostering a culture that is committed to a multi-generational workplace where all workers can grow and thrive.[219] Workplace cultures that extol ability and reject discriminatory stereotypes and words result in more diverse, productive and engaged workforces.

Second, employers and employees can also help prevent age discrimination in the workplace by recognizing and rejecting stereotypes, assumptions, and remarks about age and older workers just as they reject such stereotypes, assumptions and remarks about someone's sex, race, disability, national origin, or religion.

In addition, the following strategies were recommended by experts at EEOC meetings to avoid age discrimination, increase age diversity in the workplace, and value a multi-generational workforce.

A. Increasing the Age Diversity of the Workforce

Based on research studies and their work with employers, experts recommend several strategies that can prevent biases from entering into recruitment, hiring, and human resource practices. One significant but often overlooked strategy is to include age in diversity and inclusion programs and efforts. A study by PriceWaterhouseCoopers found that 64 percent of firms surveyed in its 2015 Annual Global CEO survey had diversity & inclusion strategies, but only 8 percent of those included age.[220] Yet, the benefits of doing so appear to have strong positive outcomes for both employers and employees.

An initial assessment of an organization's culture, practices, and policies may reveal outdated assumptions about older workers that could taint objective decisionmaking and limit opportunities. The Center on Aging & Work at Boston College, along with AARP, has developed an assessment tool that evaluates organizational strengths and weaknesses in attracting, managing, and retaining a multigenerational workforce.[224]

B. Recruitment and Hiring Strategies

With low unemployment and growing shortages of skilled, qualified workers, hiring older workers can help employers fill what has become known as the "skills gap" -- the lack of trained or experienced workers for higher-skilled jobs. Their employment also furthers economic and social policies that encourage continued work to strengthen personal financial well-being and our economy.[225]

Recruitment practices can avoid age bias by seeking workers of all ages and not limiting qualifications based on age or years of experience. Over 94 percent of working Americans visit companies' social media pages when searching for a job.[226] Websites and social media that include age-diverse photos, graphics, and content demonstrate a commitment to attracting a multi-generational workforce. Applications, whether online or paper, should not ask date of birth or other age-related questions, just as they should not ask an applicant to identify her race or sex.

Training recruiters and interviewers to avoid ageist assumptions and even common perceptions about older workers is critical. For example, the assumption that hiring a younger worker is less expensive and a better return on investment than hiring an older worker is outdated and flawed. Contrary to common perception, older workers do not cost significantly more than younger workers, as structural changes in compensation and benefits have created a more age-neutral distribution of labor costs.[227] And the presumed investment based on the assumption that the younger worker will be with the employer longer is less likely these days. Millennials are leaving their employers, on average, after three years, whereas older workers, on average, provide employers with more stability, longer tenures, and ultimately a greater return on investment.[228]

Experts also recommend an assessment of interviewing strategies to avoid age bias, as studies and experience show that interviewers tend to favor job candidates who remind them of themselves.[229] An age-diverse interview panel for prospective employees may be viewed more positively by candidates and may be less vulnerable to implicit bias. Training interviewers as to how to frame age-neutral questions and using a standard or structured process can help avoid age bias throughout the interview process.[230]

C. Retention Strategies

Effective retention strategies decrease unexpected turnover costs and loss of institutional knowledge, and increase engagement and productivity. Age is positively correlated with employee engagement, as workers age 50 and older have the highest levels of engagement in the workplace.[231] And high employee engagement increases employee productivity.[232]

Experts recommend strategies to provide career counseling, training and development opportunities to workers at all ages and at all stages of their careers. Mixed-age and reverse-age mentoring can increase worker productivity and satisfaction.[233] Workers of all ages value flexible work options that can provide work/life balance at various times in their careers.[234]

Conclusion

The ADEA has helped to bring equality and fairness to the workplace for older workers. But age discrimination persists based on outdated and unfounded assumptions about older workers, aging and discrimination. No one should be denied a job based on stereotypes and it's time to put these outdated assumptions to rest. Ability, experience and commitment matter, not age. To achieve the promise of the ADEA, it's time to recognize the value of age diversity in the workplace and the benefits of a multi-generational workforce.

[2] Pub. L. 88-38, 77 Stat. 56 (1963) (codified at 29 U.S.C. § 206(d)).

[10] "If more skilled workers over 60 stayed in the workforce, it would make a significant impact on reducing the skilled worker shortage in the United States." Written Testimony of John Challenger, CEO, Challenger, Gray & Christmas, Inc., The ADEA 50 -- More Relevant Than Ever, Meeting of the U.S. Equal Employment Opportunity Commission (2017).

[11] H.R. 10144 sought to prohibit "arbitrary employment discrimination because of race, religion, color, national origin, ancestry or age." H.R. Rep. No. 97-1370, 97th Cong. 2d Sess. 2155 (1962).

[12] The amendment to add a prohibition of age discrimination to Title VII failed in the House by a vote of 123 to 94. 110 Cong.Rec. 2596-99 (1964).The Senate rejected a similar amendmentby a vote of 63 to 28. 110 Cong.Rec. 9911-13 (1964). Some ADEA historians claim that the move to add age discrimination to TitleVII was intended to defeat passage, like the move to add sex discrimination. See Daniel P. O'Meara, Protecting The Growing Numbers of Older Workers: The Age Discrimination in Employment Act 11 (1989); Disparate Impact Analysis and the Age Discrimination in Employment Act, 64 Minn. L. Rev. 1038, 1053 (1984); Alfred W. Blumrosen, Interpreting the ADEA: Intent or Impact, Age Discrimination in Employment Act: A Compliance and Litigation Manual for Lawyers and Personnel Practitioners, 106-15 (1982). Historians also disagree on the reasons Congress added sex to Title VII. J. Freeman, How Sex Got into Title VII: Persistent Opportunism as A Maker of Public Policy, 9 Law and Inequality: A Journal of Theory and Practice, 163-184 (1991); M.E. Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for The Issue of Comparable Worth, 19 Duquesne Law Rev. 453-477 (1980).

[13] Civil Rights Act of 1964, Pub. L. No. 88-352, § 715, 78 Stat. 265 (1964).

[29] See Age Discrimination in Employment Act of 1967 , S. Rep. No. 723, 90th Cong. 1st Sess. 13-14 (1967) (statement of Sen. Javits). In the House, John H. Dent and Carl D. Perkins were the leading proponents of the ADEA.

[30] The House approved H.R. 13054 on December 4, 1967 by a vote of 344 to 13. 113 Cong. Rec. 34752 (Dec. 4, 1967). By unanimous consent, the Senate approved amendments to S.830 from the House bill. 113 Cong. Rec. 35055-57 (Dec. 5, 1967). The House, by unanimous consent, concurred on December 6, 1967. 113 Cong. Rec. 35132 (Dec. 6, 1967). President Lyndon B. Johnson signed the bill on December 15, 1967. (113 Cong. Rec. 37125 (Dec. 15, 1967). Pub. L. No. 90-202, 81 Stat. 607 (1967).

[32] As Senator Yarborough, one of the leading sponsors of the ADEA, explained:

a great deal of the problem stems from ignorance: there is simply a widespread irrational belief that once men and women are past a certain age they are no longer capable of performing even some of the most routine jobs.

113 Cong. Rec. 31254 (1967); See Improving the Age Discrimination Law, supra note 5, at III.

[36] "[T]the prohibitions of the ADEA were derived in haec verba from Title VII." Lorillard, 434 U.S. at 584. The Court cited to both prohibitions in Title VII § 703(a)(1) and (2), 42 U.S.C. §2000e-2(a)(1), (2), in comparing the almost identical language in the ADEA's prohibitions §§4(a)(1), (2), 29 U.S.C. §§ 623(a)(1), (2). Id. at n. 12.

[39] "The prohibitions in this Act shall be limited to individuals who are at least forty years of age but less than sixty-five years of age." Pub. L. No. 90-202, § 12 (1967).

[42] The Fair Labor Standards Act Amendments of 1974, § 28(a)(4), expanded the ADEA's definition of "employer" at § 630(b) to include state and local governments of any size and added another new provision, § 633a, to protect federal employees age 40 to 70. Pub. L. No. 93-259, 88 Stat. 74-76 (1974). In contrast, Title VII was amended in 1972 to cover state and local government employers that employ fifteen or more individuals through an addition to the definition of "persons" covered by the Act. Pub. L. No. 92-261, 86 Stat. 103 (1972).

[43] "The committee believes that as a matter of basic civil rights people should be treated in employment based on their individual ability to perform a job rather than based on stereotypes about race, sex, or age." S. REP. 95-493, 95th Cong., 1st Sess. 1977, at 3; 1978 U.S.C.C.A.N. 504, 1977 WL 9644.

Scientific research now indicates that chronological age alone is a poor indicator of ability to perform a job....

... A person with the ability and desire to work should not be denied that opportunity solely because of age. The Act's current age limitation unfairly assumes that age alone provides an accurate measure of an individual's ability to perform work. In fact, the evidence clearly establishes the continued productivity of workers who are 65 years of age and older.

... the arguments for retaining existing mandatory retirement policies are largely based on misconceptions rather than a careful analysis of the facts.

See also Mandatory Retirement: The Social and Human Cost of Enforced Idleness,H.R. Rep. Select Comm. On Aging, 95th Cong. 1st Sess. VII (1977); The Next Steps in Combating Age Discrimination in Employment: With Special Reference to Mandatory Retirement Policy, A Working Paper, S. Spec. Comm. on Aging, 95th Cong. 1st Sess. 1 (1977).

The House and Senate Reports for the 1986 ADEA Amendments cited to a 1985 study by psychologists David Waldman and Bruce Avolio on the relationship between age and performance. The study "found that contrary to popular belief, older workers can be just as productive as their younger counterparts" and found little support for the belief that job performance declines with age. Eliminating Mandatory Retirement, A Report by The Chairman of The Subcomm. on Health and Long-Term Care of The Select Comm. on Aging , H.R. Rep. No. 99-561, at 107-08 (2d Sess. 1986); Working Americans: Equality at Any Age: Hearing Before the S. Spec. Comm. on Aging,99th Cong. (1986).

[45] Pub. L. No. 95-256, § 12(a), 92 Stat. 189 (1978).

[54] See 112 Cong. Rec. 20823 (1966) (statement of Sen. Javits); 113 Cong. Rec. 7076 (1967) (statements of Sen. Javits); Age Discrimination in Employment Act of 1967 , S. Rep. No. 723, at 13-14 (1st Sess. 1967) (statements of Sen. Javits) (opposing Administration's bill which would create a "wholly unnecessary new bureaucracy" with DOL).

[55] See Hearings on S. 830, S. 788 Before the Subcomm. on Labor of the S. Comm. on Labor and Pub. Welfare, 90th Cong. 24, 29, 396 (1967) (statements of Sen. Javits and Sen. Smathers); Age Discrimination in Employment - Proposed Amendments to S.830 Administration Bill, Before the S. Subcomm. On Labor of the Committee on Labor and Public Welfare, 113 Cong. Rec. 7076 (1967) (statement of Sen. Jacob Javits) ("The EEOC is already years behind in disposing of its docket."); Craig Robert Senn, Ending Discriminatory Damages, 64 Ala. L. Rev. 187, 203 (2012) (summarizing legislators' concerns that the EEOC was under-resourced to handle enforcement of the ADEA, given lengthy EEOC charge backlog and "the possibility that age discrimination enforcement would be neglected in favor of other forms of discrimination.").

[56] The Wage and Hour Division of the Department of Labor (DOL) enforced the Equal Pay Act of 1963, 29 U.S.C. § 206, and the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

"There is medical evidence, for example, to support the contention that such is generally not the case. In many instances, an individual at age 60 may be physically capable of performing heavy-lifting on a job, whereas another individual of age 30 may be physically incapable of doing so."

Id.

Equal Employment Opportunity Commission Enforcement of the Age Discrimination in Employment Act: 1979 To 1982, An Information Paper Prepared by the Staff of the S. Spec. Comm. on Aging[59] DOL counted charges based on the number of respondents, while the EEOC counts charges by the numbers of charging parties. Thus, a layoff of 30 employees by a single employer on which ADEA charges have been filed would be counted as one charge by DOL and 30 charges by the EEOC. See S. Spec. Comm. on Aging,, 97th Cong. 2d Sess. 98-691 at 3 (1982).

[62] Message of the President, Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19807, 92 Stat. 3781 (May 9, 1978).

[65] "[T]he Commission has devoted substantially more to its ADEA program than the $3.5 million budget and 119 positions transferred from Labor. Indeed, the Commission transferred Title VII positions into the age enforcement program during both fiscal years 1980 and 1981. The current budgetary allocation for the ADEA program is 128 positions and approximately $14 million." S. Spec. Comm. on Aging, Equal Employment Opportunity Commission Enforcement of the Age Discrimination in Employment Act: 1979 To 1982 , supra note 59, at 3.

[69] See Age Discrimination Claims Assistance Act of 1988, Pub. L. No. 100-283, 102 Stat. 78 (1988). Congress reinstated the rights of charging parties to file lawsuits who had lost that right when the EEOC failed to process ADEA charges within the two or three-year statute of limitation. The ADCAA extended the time for filing lawsuits for an additional 540 days (18 months). Congress authorized a second extension of the ADEA statute of limitations in 1990 when the EEOC again failed to timely process ADEA charges. See also, Age Discrimination Claims Assistance Amendments of 1990, Pub. L. No. 101-504, 104 Stat. 1298 (1990) (providing charging parties an additional 450 days in which to file their own private ADEA lawsuits, while permitting the EEOC to process the backlog of age discrimination charges).

[72] In EEOC v. Wyoming, 460 U.S. 226 (1983), the Supreme Court held that the 1974 extension of the ADEA to state governments as employers was a valid exercise of the Commerce Clause and rejected a Tenth Amendment challenge to the ADEA. However, in Kimel v. Florida Board of Regents, 528 U.S. 62, 78-79 (2000), the Court held that the ADEA did not validly abrogate states' Eleventh Amendment immunity from suit for monetary relief by individuals. Kimel explicitly limits its holding to suits by private individuals and reaffirmed the holding in EEOC v. Wyoming, 460 U.S. 226 (1983), that state and local government employers are covered by the ADEA. See Kimel, 528 U.S. at 91 ("We hold only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity against suits by private individuals.")

[77] See EEOC v. Seasons 52, No. 15-CV-20561-JAL (S.D. Fla. 2018) (consent decree settling claims for failure to hire based on age); Texas Roadhouse,

[78] 29 U.S.C. § 628.

[79] The regulations explaining the waiver requirements of the OWBPA were the product of a negotiated rulemaking, the first time the EEOC had used such a procedure that brought experts together to develop regulations for consideration by the Agency. Waivers of Rights and Claims Under the ADEA,63 Fed. Reg. 30628 (June 5, 1998) (to be codified at 29 C.F.R. § 1625.22).

[80] Coordination of Retiree Health Benefits with Medicare and Sate Health Benefits, 72 Fed. Reg. 72945 (Dec. 2007) (codified at 29 C.F.R. § 1625.32).

[81] Coverage Under the Age Discrimination in Employment Act, 72 Fed. Reg. 36875 (Jul. 2007).

[82] Differentiations Based on Reasonable Factors Other Than Age, 77 Fed. Reg. 19095 (codified at 29 C.F.R. § 1625).

[88] Mitra Toossi, Dep't of Lab., Bureau of Lab. Stat., A Century of Change: The U.S. Labor Force, 1950 - 2050, Table 5, Civilian Labor Force by Sex, Age, Race, and Hispanic Origin, 1950 - 2000 and Projected, 2010 - 2050, Monthly Lab. Rev. 15 (2002). See also Written Statement of Patrick Button, Assistant Professor Dep't of Econ., Tulane U., The ADEA @ 50 -- More Relevant Than Ever, Meeting of the U.S. Equal Employment Opportunity Commission (2017) ("The United States is experiencing an aging population that is increasingly trying to work longer....").

[90] Patrick Purcell, Cong. Research Serv., Older Workers: Employment and Retirement Trends (2007).

[96] From 2008 to 2010, more than three out of every four adults age 65 and over rated their health as good, very good, or excellent. Fed. Interagency Forum on Aging-Related Stat. , Older Americans 2012: Key Indicators of Well-Being (2012).

[97] The qualifying age for full Social Security retirement benefits has been increasing since 2000. In 2020, eligibility for full Social Security retirement benefits will be 67 years of age. CDC, Older Employees in the Workplace, Issue Brief No. 1 (2012) (citing Patrick Purcell, Congressional Research Service, Older Workers: Employment and Retirement Trends (2009)).

[103] A 2017 Gallup survey reported "there has been a seismic shift since 1995 in the age at which non-retirees believe they will retire. In two polls conducted that year, an average of 14% said they expected to retire after 65 and 49% before 65. These percentages have flipped in the last two decades, as the age to start collecting Social Security has risen to 67 and more Americans feel a financial need to stay in the workforce." Gallup, Most U.S. Employed Adults Plan to Work Past Retirement Age (2017).

[107] Workers' expectations regarding when and how they will retire represent a dramatic change from long-held societal notions about fully retiring at age 65. Although the numbers vary based on who was surveyed and the date of the survey, nearly 3 out of 4 workers plan to work past age 65. Gallup, Most U.S. Employed Adults Plan to Work Past Retirement Age (2017). This increase is five times the 14 percent who said this in 1995. Rebecca Riffkin, Gallup, Americans Settling on Older Retirement Age (2015). In the same study, 63 percent plan to work part-time and 11 percent say they will work full-time. Id.Thirteen percent of older workers surveyed say they do not plan to retire at all. Transamerica Center for Retirement Studies, 17th Annual Retirement Survey, 16, 258-60 (2016).

[119] AARP, Staying Ahead of the Curve - The Career and Work Study (2013) (Sample of 1502 workers ages 45-74; defining blue collar as skilled and semi-skilled labor, unskilled labor, and service and protective occupations; white collar as technician/minor administrative, clerical, and sales; and executive/professional as executive/admin/mgmt. jobs, top talent/major or less professional jobs, small business owners, and farmers.)

[120] David Baer, Older Workers: More Likely to Work Part Time, AARP Pub. Pol'y Inst. (Feb. 2015). Some older workers have had to settle for part-time jobs because they could not obtain full-time employment. Id.

[125] Templin, 89 Or. L. Rev. at 1238; Johnson et al., Employment at Older Ages and the Changing Nature of Work at 11, 14.

[128]Barbara F. Reskin, The Proximate Causes of Employment Discrimination, 29 Contemporary Soc. 319, 320 (Vol. 2 March 2000) ("much discrimination stems from normal cognitive processes" of "stereotyping, attribution bias, and evaluation bias" which "introduce sex, race, and ethnic biases into our perceptions, interpretations, recollections, and evaluations of others.").

[132] "Scientific research now indicates that chronological age alone is a poor indicator of ability to perform a job." Amending the Age Discrimination in Employment Act Amendments of 1977, S. Rep. 95-493, 95th Cong. 1st Sess. 2-4 (1977). See Schaie, The Longitudinal Study: A 21-year Exploration of Psychometric Intelligence in Adulthood," in Longitudinal Studies of Adult Psychological Development, 33 (K. W. Schaie, ed. 1983) (studies show no decline in average intelligence at until age 80); McEvoy & Cascio, Cumulative Evidence of the Relationship between Employee Age and Job Performance, 74 J. of Appl. Psych. 11 (1989) (finding age bears no relationship to employee performance); (studies show no decline in average intelligence at least until age 80); Staudinger, Cornelius & Baltes, The Aging of Intelligence: Potential and Limits, 503 The Annals, 43, 45-46 (1989)("Persons of the same chronological age are not identical as to their mental status. There are 70-year-olds who function like 30-year-olds and vice versa."); Diane B. Howelson, Cognitive Skills and the Aging Brain: What to Expect, Cerebrum (Dec. 1, 2015).

[138] Glen P. Kenny, Herbert Groeller, Ryan McGinn, and Andreas D. Flouris, Age, Human Performance, and Physical Employment Standards, 41 Applied Physiology, nutrition, and Metabolism (2016) ("the extent of the decline in physical functioning, and therefore the risk of work-related injuries or illness, is dependent on a myriad of individual factors including lifestyle, level of physical activity and fitness, and general health.")

[143] See Bruno Bettelheim & Morris Janowitz, Soc. Change and Prejudice at 11 (1964). Isis H. Settles, Nicole T. Buchanan, & Stevie C. Y. Yap, Race discrimination in the workplace, at 8, Praeger Handbook on Understanding and Preventing Workplace Discrimination (M. A. Paludi, C. A. Paludi Jr., & E. DeSouza Eds., Westport, CT: Praeger Publishers 2010) ("discrimination - negative behaviors enacted toward members of a particular group - typically stem from prejudiced attitudes and stereotypes"); L. Duke, "White's Racial Stereotypes Persist: Most Retain Negative Beliefs About Minorities, Survey Finds," Washington Post (Jan. 9, 1991), p. A1.

[145] See Price Waterhouse v. Hopkins,490 U.S. 228 (1990); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 708 (1978); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In Los Angeles Dept. of Water and Power v. Manhart, the Supreme Court held that Title VII prohibited a requirement that women make greater pension contributions than men, even though it was based on the accurate assumption that women generally live longer. The Court noted that "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," even those that were true for the class. Id. n. 13. "[E]ven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply." Id. See, e.g., Merritt v. Old Dominion Freight Line, Inc., No. 6:07-CV-27, 2011 WL 322885 (W.D. Va. Feb. 2, 2011) (comment that women unfit to be delivery drivers).

[147] In AARP's 2017 study of age discrimination, 61 percent of those age 45 and older reported seeing or experiencing age discrimination. Perron, supra note 9. This is a slight decrease from the 64.5% reporting personal experience with age discrimination in AARP's 2013 study. See AARP, Staying Ahead of the Curve 2013: AARP Multicultural Work and Career Study Perceptions of Age Discrimination in the Workplace - Ages 45-74 (2013 survey of 1,500 workers age 45-74 reported that sixty four percent said they had seen or experienced age discrimination in the workplace).

[149] Careerealism, a career advice and employment branding site, polled its one million monthly readers in 2015 and 87 percent responded that they thought age discrimination hurt their job search. CAREEREALISM Releases 2015 Age Discrimination Survey Results. See also Perron, supra note 9 (three-quarters of older workers blame age discrimination for their lack of confidence in finding new employment).

[151] In AARP's 2017 survey, 64 percent of women and 59 percent of men say they have seen or experienced age discrimination. While AARP's 2013 survey similarly found more women (72 percent) than men (57 percent) responded that older workers face age discrimination, the 2017 responses show a decline in the perception of age discrimination for women, but an increase in that perception for men.

[156] See The Next Steps in Combating Age Discrimination in Employment: With Special Reference to Mandatory Retirement Policy, A Working Paper, S. Spec. Comm. on Aging, 95th Cong. 1st Sess. 7 (1977).

[158] 18th Ann. Rep. of the U.S. Equal Employment Opportunity Commission, 10 (Sept. 4, 1984).

[160] In 1990, 14 percent of ADEA charges were filed by African Americans, which nearly doubled to 27 percent in 2017.

[161] In 1990, 1 percent of ADEA charges were filed by Asians, which tripled to 3 percent in 2017.

[162] "[N]umerous negative stereotypes about older workers still exist that often prevent or have a negative impact on employment opportunities for older people." See Written Testimony of Dr. Sara J. Czaja, Director, CREATE (Center for Research and Education on Aging and Technology Enhancement), and Director of the Center on Aging at the University of Miami, The ADEA @ 50 -- More Relevant Than Ever, Meeting of the U.S. Equal Employment Opportunity Commission (2017). "Several studies have found evidence of biases against older adults during recruitment and hiring." See Written Testimony of Jacquelyn B. James, supra note 102. See also Written Statement of Michael Campion, Professor, Purdue University, Age Discrimination in the 21st Century -- Barriers to the Employment of Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2009).

[167] CAREEREALISM Releases 2015 Age Discrimination Survey Results, supra note 149; Perron, supra note 9. Yet few older workers file formal complaints of hiring discrimination, as age discrimination is often difficult to detect and to prove. See Perron, supra note 9 (only 3 percent formally complain); Written Testimony of Joseph Sellers, Cohen Milstein Sellers & Toll PLLC, Public Input into the Development of EEOC's Strategic Enforcement Plan, Meeting of the U.S. Equal Employment Opportunity Commission (2012) (hiring discrimination is hard to detect).

[170] Neumark, David, Ian Burn, and Patrick Button, Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment (NBER, Working Paper No. 21669, 2015) cited in Written Testimony of Patrick Button, supra note 88; " Is there age discrimination in hiring?" BLS Monthly Labor Review (April 2017); " Age Discrimination and the Hiring of Older Workers" (Federal Reserve Bank of San Francisco Economic Letter, no. 2017-06, February 27, 2017).

[177] See EEOC v. Minnesota Dep't of Corr., 648 F.3d 910 (8th Cir. 2011) (holding that an age "cliff" that foreclosed any retirement incentive to individuals once they reached age 55 was inconsistent with the purposes of the ADEA.); Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 653 (8th Cir. 2005) (early retirement incentive plan that made employees age 65 or older ineligible for benefits was facially discriminatory). See also Cathy Ventrell-Monsees, Take the Money and Run or It's Too Late Baby: Early Retirement Incentives and the Age Discrimination in Employment Act, 29 Univ. of Memphis L.R. 783 (1999) (collecting cases).

[178] See EEOC v. Baltimore Cty., 747 F.3d 267 (4th Cir. 2014) (requirement that older new-hires make larger pension contributions than younger new-hires for the same benefits violated ADEA). In a series of suits against New York municipal volunteer fire departments, EEOC challenged the denial of service credit for volunteer firefighters who worked past the entitlement age for retiremen t benefits. EEOC v. Bayville Fire Co., No. 07-cv-4472 (E.D.N.Y. consent decree entered Apr. 8, 2010); EEOC v. Brentwood Fire Dep't, No. 09-cv-3298 (E.D.N.Y. consent decree entered Mar. 14, 2011); EEOC v. Village of Minneola, No. 08-cv-973 (E.D.N.Y. consent decree entered Jan. 20, 2010); EEOC v. Selden Fire Dist., No. 08-cv-3974 (E.D.N.Y. consent decree entered Apr. 16, 2010); EEOC v. Eaton's Neck Fire Dist., No. 08-cv-5089 (E.D.N.Y. consent decree entered Oct. 30, 2009); EEOC v. Oyster Bay Fire Dep't, No. 09-cv-3297 (E.D.N.Y. consent decree entered Sep. 16, 2011); EEOC v. Amityville Fire Dep't, No. 09-cv-3742 (E.D.N.Y. consent decree entered Mar. 15, 2011); EEOC v. Village of N. Syracuse, No. 12-cv-1465 (N.D.N.Y. consent decree entered Apr. 3, 2013). See also Kentucky Retirement Systems v. EEOC, 554 U.S. 135, 143 (2008); Arnett v. California Public Employees' Retirement System, 179 F.3d 690 (9th Cir. 1999) (injunction against CalPERS and some 1500 local agencies from enforcing a 1980 statue that reduced disability pension benefits of older police officers and firefighters from 50 percent of final compensation to as little as 13 percent); AARP v. Farmers Grp. Inc., 943 F.2d 996 (9th Cir. 1991) (affirming summary judgment and award of liquidated damages to employees who continued working past age 65 but were denied profit sharing and pension contributions).

[179] 492 U.S. 158 (1989). The Betts decision caused the dismissal of many pending ADEA benefits cases that had been brought by the EEOC and private litigants. See Age Discrimination in Employee Benefit Plans: The Impact of the Betts Decision: Joint Hearing Before the Select Comm. on Aging and the Subcomms. on Employment Opportunities and Labor-Management Relations of the H. Comm. on Education and Labor, 101 Cong. (1989) (statement of Charles A. Shanor, General Counsel of the U.S. Equal Employment Opportunity Commission that the EEOC had 30 cases pending in trial and appellate courts, half of which would require dismissal due to the Betts decision; statement of Robert Laufman, Attorney at Law, Laufman, Rauh, and Gerhardstein) reprinted in 2 EEOC legislative history of the older workers benefit protection act of 1990 at 743, 732 (1991).

[180] Pub. L. No. 101-433, 104 Stat. 978.

[181] The OWBPA codified the specific language of the equal benefit or equal cost rule from the EEOC's regulations, 29 U.S.C. § 623(f)(2)(B)(i) and 29 C.F.R. § 1625.10, and provided narrow exceptions for early retirement incentives and the coordination of severance benefits.

[183] 29 C.F.R. § 1625.32 (2003). The exemption was upheld in a lawsuit challenging it. AARP v. EEOC, 489 F.3d 558 (3d Cir. 2007).

[194] Research on the success rate of ADEA plaintiffs prior to the Supreme Court's decision in Gross v. FBL shows higher rates of success in the 1980s and 1990s than more recent decades. See Eglit, supra note 164. (analysis of ADEA cases decided in 1996 shows older workers prevailed in 29 percent of substantive ADEA cases at the appellate level and 25 percent at the district court level; and had a 90 percent win rate in jury trials. Id. at 655 (recognizing that the strongest cases survive summary judgment, but often settle prior to trial). Another study of data collected by the Administrative Office of the U.S. Courts for 1998-2001, ADEA plaintiffs won 21 percent of bench trials while the win rate for bench trials in employment discrimination cases overall was 26 percent. Kohrman & Hayes, Employers Who Cry "RIF" and the Courts That Believe Them, supra note 8, at 153.

[195] 179 F.3d 690 (9th Cir. 1999).

[201] Age Discrimination in Employment Act of 1967, S.Rep. No. 723, 90th Cong. 1st Sess. 2 (1967); H.R.Rep. No. 805, 90th Cong. 1st Sess. 2 (1967).

[202] Colo. Rev. Stat. § 24-34-40 (1903); Conn. Gen. Stat. § 46a-60 (1965); 19 Del. Code § 711 (1960); Haw. Rev. Stat. § 378-2 (1965); La. Rev. Stat. § 23:321 (1934), Mass. Gen. Laws Ch. 151B (1937) (amended in 1950); N.J. Stat. § 10:5-12; N.Y. Exec. Law § 296 (1958); Ohio Rev. Code §4112.02 (1961); Or. Rev. Stat. § 659A.030 (through Leg. Sess. 2011); 43 Pa. Stat. § 955 (1956); Wash. Rev. Code § 49.60.180 (1961); Wis. Stat. §§ 111.321-322 (1959); P.R. Laws Ann. tit. 29, § 146 (1960).

[203] Arkansas' and Mississippi's laws only apply to state government employees. Six states have stand-alone age discrimination laws separate from other employment discrimination laws (Alabama, Arkansas, Georgia, Indiana, Kansas, and Nebraska).

[204] See Diaz v. Jiten Hotel Management, Inc., 671 F.3d 78 (1st Cir. 2012) ("There is just one Massachusetts statute that outlaws both age and gender discrimination (Chapter 151B)) (holding Gross does not apply to state law claim); Alamo v. Practice Management Information Corp., 148 Cal. Rptr. 3d 151, 161 (Cal. Ct. App. 2012) (holding the California Fair Employment and Housing Act prohibits age and other protected classes and declined to follow Grossin considering the proper standard of causation under FEHA); Wagner v. Board of Trustees for Connecticut State University, 2012 WL 668544 (Superior Ct. 2012) ("Given the legislature's decision to include multiple types of unlawful employment discrimination within a single statutory provision without setting out distinctive standards for the different types, the logical conclusion is that it intended that the same standard of proof be applied to all the types of discrimination.").

[207] Written Testimony of Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania State University Dickinson School of Law, Impact of Economy on Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2010); Written Testimony of R. Scott Oswald, Principal, The Employment Law Group, Impact of Economy on Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2010); Written Statement of Cathy Ventrell-Monsees, President Workplace Fairness, Age Discrimination in the 21st Century -- Barriers to the Employment of Older Workers, Meeting of the U.S. Equal Employment Opportunity Commission (2009). See Appendix B for a complete list of ADEA Supreme Court decisions, and at https://www.eeoc.gov/eeoc/history/adea50th/supreme-court.cfm.

[208] 557 U.S. 167, 174 (2009).

[211] Several experts have examined the flaws they see in the Gross decision and the harm it has caused. See Mark R. Deethard, Life After Gross: Creating A New Center for Disparate Treatment Proof Structures, 72 La. L. Rev. 178 (2011); Michael Foreman, Gross v. FBL Financial Services - Oh So Gross! 40 U. Mem. L. Rev. 681 (2010); David Sherwyn & Michael Heisse, The Gross Beast of Burden of Proof: Experimental Evidence on How the Burden of Proof Influences Employment Discrimination Case Outcomes, 42 Ariz. St. L. J. 901 (2010).

[213] See Sherwyn, supra note 211; Written Testimony of Michael Foreman, supra note 207; Written Testimony of R. Scott Oswald, supra note 207. The retrial of Mr. Gross' case demonstrates the difficulties resulting from the Supreme Court's decision. Mr. Gross prevailed in his first jury trial when the jury was given a motivating factor instruction. In the second trial when the jury considered the exact same evidence but was instructed to apply a "but for" standard of causation rather than the motivating factor standard, the jury ruled against Mr. Gross -- that he had not proven unlawful discrimination under the ADEA. Gross v. FBL Financial Servs., Inc., 3498 Fed.Appx. 971, 972-73 (8th Cir. 2012).

[218] "Workplace culture has the greatest impact in allowing harassment to flourish, or conversely, in preventing harassment." Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs, Chai R. Feldblum & Victoria A. Lipnic, at v, U.S. Equal Employment Opportunity Commission (June 2016). Culture is especially important with respect to age discrimination that often arises from an unconscious application or stereotyped notion of ability. See Rebecca Hanner White & Linda Hamilton Krieger, Whose Motive Matters? Discriminating in Multi-Actor Employment Decision-Making, 61 La. L. Rev. 495, 508-09 (2001).

[225] In an extensive study of the economic effects of the aging population, the National Research Council of the National Academy of Sciences recommended encouraging people to work longer and to postpone retirement for their own financial security and for the benefit to the economy of prolonged employment. See Aging and the Macroeconomy: Long-Term Implications of an Older Population, Comm. on the Long‐Run Macro‐Econ. Effects of the Aging U.S. Population Study Requested by U.S. Cong.; funded by U.S. Treasury and Nat'l Inst. on Aging(2012).

[226] iCIMS, The Modern Job Seeker Report (2017).

[229] John Challenger, CEO of Challenger, Gray & Christmas, a firm specializing in recruitment and placement, testified before the EEOC that "[r]ecruiting and talent management gatekeepers in many companies' staffing departments may not identify with or promote older applicants. If the initial interviewer cannot picture the older job seeker 'fitting in,' he or she will likely pass that applicant over for the position." Written Testimony of John Challenger supra note 10. Challenger recommended educating recruitment and talent managers on the benefits of employing older workers, and providing financial incentives to improve age-diverse recruitment and hiring. Id. See also Written Testimony of Jacquelyn B. James, supra note 102.

[231] See Written Testimony of Laurie A. McCann, AARP Foundation Litigation, Promoting Diverse and Inclusive Workplaces in the Tech Sector, Meeting of the U.S. Equal Employment Opportunity Commission, n. 19 (2016).

[234] See Written Testimony of Cornelia Gamlem, supra note 220 ("[O]ffering nontraditional scheduling options for employees not only improves work-life balance for the employees, but it also allows organizations to recruit and retain motivated workers who may not be able or willing to work a traditional nine-to-five schedule.")

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The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA)

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by Victoria A. Lipnic June 2018 Acting Chair U.S. Equal Employment Opportunity Commission Dear Reader, This month marks the 50th anniversary of the effective date of the Age Discrimination in Employment Act (the ADEA) -- one of the premier statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

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“Ageism costs our societies billions of dollars. In the United States of America (USA), a 2020 study showed ageism in the form of negative age stereotypes and self-perceptions led to excess annual costs of US$63 billion for the eight most expensive health conditions. This amounts to US$1 in every US$7 spent on these conditions for all Americans over the age of 60 for one ye

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Every second person in the world is believed to hold ageist attitudes - leading to poorer physical and mental health and reduced quality of life for older persons, costing societies billions of dollars each year, according to a new United Nations report on ageism.

The report released today by WHO, Office of the High Commissioner for Human Rights (OHCHR), United Nations Department of Economic and Social Affairs (UN DESA) and United Nations Population Fund (UNFPA), calls for urgent action to combat ageism and better measurement and reporting to expose ageism for what it is - an insidious scourge on society.

The response to control the COVID-19 pandemic has unveiled just how widespread ageism is - older and younger people have been stereotyped in public discourse and on social media. In some contexts, age has been used as the sole criterion for access to medical care, lifesaving therapies and for physical isolation.

"As countries seek to recover and rebuild from the pandemic, we cannot let age-based stereotypes, prejudice and discrimination limit opportunities to secure the health, well-being and dignity of people everywhere," said Dr Tedros Adhanom Ghebreyesus, WHO Director-General. "This report outlines the nature and scale of the problem but also offers solutions in the form of evidence-based interventions to end ageism at all stages."

Findings from the report

Ageism seeps into many institutions and sectors of society including those providing health and social care, in the workplace, media and the legal system. Healthcare rationing based solely on age is widespread. A systematic review in 2020 showed that in 85 per cent of 149 studies, age determined who received certain medical procedures or treatments.

Both older and younger adults are often disadvantaged in the workplace and access to specialized training and education decline significantly with age. Ageism against younger people manifests across many areas such as employment, health, housing and politics where younger people's voices are often denied or dismissed.

"Ageism towards younger and older people is prevalent, unrecognized, unchallenged and has far-reaching consequences for our economies and societies," said Maria-Francesca Spatolisano, Assistant Secretary-General for Policy Coordination and Inter-Agency Affairs in the Department of Economic and Social Affairs. "Together, we can prevent this. Join the movement and combat ageism."

Ageism has serious and wide-ranging consequences for people's health and well-being. Among older people, ageism is associated with poorer physical and mental health, increased social isolation and loneliness, greater financial insecurity, decreased quality of life and premature death. An estimated 6.3 million cases of depression globally are estimated to be attributable to ageism. It intersects and exacerbates other forms of bias and disadvantage including those related to sex, race and disability leading to a negative impact on people's health and well-being.

"The pandemic has put into stark relief the vulnerabilities of older people, especially those most marginalized, who often face overlapping discrimination and barriers - because they are poor, live with disabilities, are women living alone, or belong to minority groups," said Natalia Kanem, Executive Director, United Nations Population Fund. "Let's make this crisis a turning point in the way we see, treat and respond to older people, so that together we can build the world of health, well-being and dignity for all ages that we all want."

Ageism costs our societies billions of dollars. In the United States of America (USA), a 2020 study showed ageism in the form of negative age stereotypes and self-perceptions led to excess annual costs of US$63 billion for the eight most expensive health conditions. This amounts to US$1 in every US$7 spent on these conditions for all Americans over the age of 60 for one year (see note to editors).

Estimates in Australia suggest that if 5 per cent more people aged 55 or older were employed, there would be a positive impact of AUD$48 billion on the national economy annually. There are currently limited data and information on the economic costs of ageism and more research is needed to better understand its economic impact, particularly in low- and middle-income countries.

"Ageism harms everyone - old and young. But often, it is so widespread and accepted - in our attitudes and in policies, laws and institutions - that we do not even recognize its detrimental effect on our dignity and rights said Michelle Bachelet, United Nations High Commissioner for Human Rights. "We need to fight ageism head-on, as a deep-rooted human rights violation."

Combatting ageism

The report notes that policies and laws that address ageism, educational activities that enhance empathy and dispel misconceptions, and intergenerational activities that reduce prejudice all help decrease ageism.

All countries and stakeholders are encouraged to use evidence-based strategies, improve data collection and research and work together to build a movement to change how we think, feel and act towards age and ageing, and to advance progress on the UN Decade of Healthy Ageing.

Note to Editors

The Global report on ageism compiles the best evidence on the scale, the impact and the determinants of ageism, effective strategies to tackle the problem and recommendations for action to create a world fit for all ages. The report is directed at policymakers, practitioners, researchers, development agencies and members of the private sector and civil society.

Ageism arises when age is used to categorize and divide people in ways that lead to harm, disadvantage, and injustice. It can take many forms including prejudicial attitudes, discriminatory acts, and institutional policies and practices that perpetuate stereotypical beliefs.

Prevalence figures based on a survey of 83 034 people in 57 countries found one in every two people held moderately or highly ageist attitudes (i.e. stereotypes and prejudice). More information: https://www.mdpi.com/1660-4601/17/9/3159.

Excess costs of health care: Ageism influences health through three pathways: psychological, behavioural and physiological. Psychologically, negative age stereotypes can exacerbate stress; behaviourally, negative self-perceptions of ageing predict worse health behaviour, such as noncompliance with prescribed medications; physiologically, negative age stereotypes predict detrimental brain changes decades later, including the accumulation of plaques and tangles and reduction in the size of the hippocampus.

In the USA, ageism led to excess costs of US$63 billion for a broad range of health conditions during one year. This amounts to US$1 of every US$7 spent on the eight most expensive health conditions for all Americans over the age of 60 during one year. The excess health care spending due to ageism was derived from the following: (a) number of Americans aged 60 years or older in 2013; (b) prevalence of interpersonal and self-directed ageism based on percentage of people that agree to the following statements: "You are treated with less courtesy or respect than other people", "Forgetfulness is a natural occurrence just from growing old" and "The older I get the more useless I feel." (c) evidence of the impact of such ageist statements on the eight health conditions; (d) prevalence of the eight health conditions in 2013, the most recent year for which health care spending was available; and (e) Institute for Health Metrics and Evaluation (IHME) costs per person of the eight health conditions in 2013. More information:https://academic.oup.com/gerontologist/article/60/1/174/5166947.

Related links

The Global report on ageism.

To watch the launch event on Thursday, 18 March from 13.00 - 14.00 CET, please register here.

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The World Health Organization (WHO) provides global leadership in public health within the United Nations system. Founded in 1948, WHO works with 194 Member States, across six regions and from more than 150 offices, to promote health, keep the world safe and serve the vulnerable. Our goal for 2019-2023 is to ensure that a billion more people have universal health coverage, to protect a billion more people from health emergencies, and provide a further billion people with better health and wellbeing. For more information about WHO, visit www.who.int. Follow WHO on Twitter and Facebook.

The Office of the United Nations Commissioner for Human Rights is the leading UN entity on human rights. We represent the world's commitment to the promotion and protection of the full range of human rights and freedoms set out in the Universal Declaration of Human Rights. To fulfil its mission, UN Human Rights follows a robust framework of results known as the OHCHR Management Plan (OMP). This roadmap is based on the outcomes of consultations with Member States, the UN system, civil society, the donor community and the private sector.

United Nations Department of Economic and Social Affairs (UN DESA), rooted in the United Nations Charter and guided by the transformative 2030 Agenda for Sustainable Development, upholds the development pillar of the United Nations. UN DESA brings the global community together to work towards common solutions to the world's most pressing problems. The Department helps countries translate their global commitments into national action in the economic, social and environmental spheres. It is a leading analytical voice for promoting inclusion, reducing inequalities and eradicating poverty, and a champion for tearing down the barriers that keep people in poverty.

United Nations Population Fund (UNFPA) is the United Nations sexual and reproductive health agency. Our mission is to deliver a world where every pregnancy is wanted, every childbirth is safe and every young person's potential is fulfilled. UNFPA calls for the realization of reproductive rights for all and supports access to a wide range of sexual and reproductive health services - including voluntary family planning, maternal health care and comprehensive sexuality education.

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The report released today calls for urgent action to combat ageism and better measurement and reporting to expose ageism for what it is – an insidious scourge on society.

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Age discrimination in the U.S. labor market is a major economic obstruction

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Age discrimination in the U.S. labor market is a major economic obstruction

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“The increase in older workers makes age discrimination a problem of growing significance. Age discrimination in hiring, in firing, and on the job is revealed by a variety of research and reports. A recent paper by David Neumark of the University of California, Irvine finds ample evidence of discrimination in hiring by using confidential data about two different hiring processes used by employers in a single restaurant chain.”

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Age discrimination in the U.S. labor market is a major economic obstruction - Equitable Growth

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Employer discrimination against older workers is illegal but routine. It harms individuals and the economy. Congress should strengthen the law and enforcement.

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Aging in the United States– summary points

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Aging in the United States– summary points

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Population Reference Bureau’s (PRB) Population Bulletin, “Aging in the United States,” examines recent trends and disparities among adults ages 65 and older, and how baby boomers born between 1946 and 1964 are reshaping America’s older population.
The current growth of the population ages 65 and older, driven by the large the baby boom generation, is unprecedented in U.S. history. As they have passed through each major stage of life, baby boomers (between ages 55 and 73 in 2019) have brought both challenges and opportunities to the economy, infrastructure, and institutions.
These key findings from the report were updated in June 2019 with the latest available data.

Demographic Shifts

The number of Americans ages 65 and older is projected to nearly double from 52 million in 2018 to 95 million by 2060,

The 65-and-older age group’s share of the total population will rise from 16 percent to 23 percent.

The older population is becoming more racially and ethnically diverse. Between 2018 and 2060 the share of the older population that is non-Hispanic white is projected to drop from 77 percent to 55 percent.

The more rapidly changing racial/ethnic composition of the population under age 18 relative to those ages 65 and older has created a diversity gap between generations.

Older adults are working longer. By 2018, 24 percent of men and about 16 percent of women ages 65 and older were in the labor force. These levels are projected to rise further by 2026, to 26 percent for men and 18 percent for women.

Many parts of the country—especially counties in the rural Midwest—are aging in place because disproportionate shares of young people have moved elsewhere.

Challenges

Obesity rates among adults ages 60 and older have been increasing, standing at about 41 percent in 2015-2016.

Wide economic disparities are evident across different population subgroups. Among adults ages 65 and older, 17 percent of Latinos and 19 percent of African Americans lived in poverty in 2017—more than twice the rate among older non-Hispanic whites (7 percent).

More older adults are divorced compared with previous generations. The share of divorced women ages 65 and older increased from 3 percent in 1980 to 14 percent in 2018, and for men from 4 percent to 11 percent during the same period.
Over one-fourth (26 percent) of women ages 65 to 74 lived alone in 2018. This share jumped to 39 percent among women ages 75 to 84, and to 55 percent among women ages 85 and older.

The aging of the baby boom generation could fuel more than a 50 percent increase in the number of Americans ages 65 and older requiring nursing home care, to about 1.9 million in 2030 from 1.2 million in 2017.

Demand for elder care will also be driven by a steep rise in the number of Americans living with Alzheimer’s disease, which could more than double by 2050 to 13.8 million, from 5.8 million today.
The large share of older adults also means that Social Security and Medicare expenditures will increase from a combined 8.7 percent of gross domestic product today to 11.8 percent by 2050.
Policymakers can improve the outlook for the future by reducing current gaps in education, employment, and earnings among younger workers.

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Elders Climate Action - The mission of Elders Climate Action is to mobilize elders throughout the United States to address climate change while there is still time to protect the well-being of our grandchildren and future generations.  We are dedicated to using the power of our caring, our wisdom and our numbers to push for strong policies that will reduce greenhouse gases in our atmosphere to a level consistent with life thriving on our planet.

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Elders Climate Action - We're Taking Action on Climate Change

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Welcome to Elders Climate Action. Find inspiration, climate change information, eca materials for action and a number ways to get engaged and take action!

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The “safety net” programs our movements fought so hard to establish — social security, health-care, public housing, etc. — have been ravaged and slashed. These attacks expose not only the agenda of attack on elders but the fact that, for many elders, there has never been a safety net. Join a panel o…

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The Elders - The Elders was founded by Nelson Mandela in 2007. We are an independent group of global leaders working for peace, justice, human rights and a sustainable planet.

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Israel-Palestine: the realities of occupation

Gro Harlem Brundtland joins Nadav Weiman, a former IDF soldier and Deputy Director of Breaking the Silence, to discuss his military service, the realities of occupation and hopes for peace between Israel and Palestine.

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The Elders | Independent global leaders | Ethical Leadership

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Israel-Palestine: the realities of occupation Gro Harlem Brundtland joins Nadav Weiman, a former IDF soldier and Deputy Director of Breaking the Silence, to discuss his military service, the realities of occupation and hopes for peace between Israel and Palestine.

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(Can also be read on our website here.)
This is a condensed version of a document being developed by some members of the prospective Green Party Elders Caucus. Linda Cree and Steve Welzer have formulated the text based on contributions from (in alphabetical order) Greg Gerritt, Margaret Human, Bruce Hinkforth, John Rensenbrink, Sid Smith, and Howard Switzer

We are at a critical turning point for human civilization. Our “way of life” is literally shredding the biosphere we depend on. Greens have been in the forefront of asserting that unless we make a dramatic U-turn and radically reorganize our societies, a human future may not be possible.

Humans currently use 1.7 times as much biological productivity to meet our needs (and greeds) as is produced on planet Earth each year. Wild animal populations have decreased 60% since 1970, 90% of the large fish are now gone from the oceans, and 40% of insect species are in decline. We are passing limits on deforestation, the phosphorus cycle, climate disruption, and numerous other indicators of our planet’s health, all of which are intertwined with the health of our own communities.

We cannot have infinite growth on a finite planet. Yet “development” in most of the world today is directed towards creating still more economic growth: More stuff for more people. This dynamic has benefited a tiny layer of the population, but for nearly everyone else, even many of those who’ve had rising incomes and the ability to consume more, the costs — in terms of rates of pollution and resource depletion, inequality, anomie, and decimation of local community life — have constituted a social and ecological nightmare.

Western societies have tended to conceive of “Progress” as being a linear movement toward mastery of nature, material growth, advancement of science, expansion of technology. But disconnect from the natural world has increasingly obscured the truth that the dominant culture’s trajectory is leading toward ecocide. Instead of recognizing the perils of continuing with business-as-usual, experts offer us “technological fixes” which are likely to come with unforeseen consequences. Our hypermodern reality does not, in fact, define a culture of true progress, but rather a culture that is, as Native American activist John Trudell has written, “industrially insane.”

Some tell us that the growth imperative is a result of capitalist economic relations. But the problematic “progress and development” trajectories of our civilization pre-date capitalism and have been evident in every attempt to implement socialism in the modern era. On this basis we believe that the source of the problem goes deeper than just economic relations. The Deep Green perspective has emerged as an alternative to all of the old ideologies. Its worldview questions traditional leftist and environmentalist assumptions about what needs to be done. Its vision of thoroughgoing social transformation begins with an analysis of this civilization’s preoccupation with productivity values, its addiction to technology, its patriarchy, and its anthropocentrism.

Growth mania will lead to ecocide

Capital, technology, and the state have, for centuries, constituted an interlocking juggernaut fostering toxic industrialism and modes of production characterized by ecological irresponsibility. Meanwhile, the ideology of “development” has brought us to our current state of alienation from nature. Its growth mania has resulted in generalized hypertrophy (institutions and technologies too large to be controlled democratically) and a sense of cultural malaise. Although the situation is dire, we believe it is possible to respond successfully to the threats we face. We note how people pull together after a storm devastates their community. Humanity will need to call on that same sense of cooperation and care in the face of the unfolding modern crisis.

Our key value of Ecological Wisdom is derived from an understanding we’ve gained of how regeneration in nature is dependent upon cooperation and upon the maintenance of ecological balances. Ecosystems tend to evolve to a climax state and then remain stable for long periods of time. As evolution continues, equilibrium is established and re-established. Human systems, whether they are economic, social, or cultural, are subsystems of the over-arching ecosystem which contains them. So human systems must also strive for equilibrium.

Neither capitalism nor socialism have focused on these insights. Deep Greens tend not to favor the term “eco-socialism” because we feel that it channels thinking into old ruts. We also have concerns about the relationship of socialism to the dominant parts of the old paradigm that valued centralism and industrialism. It seems to us that the Ten Key Values of the Greens are more suggestive of a communitarian, bioregionalist orientation than a socialist one.

While reformed socialism may attempt to ameliorate its old deficiencies, we see no good reason to burden the Green Party with a term that’s been so loaded with negativity. Moreover, we’re proud to convey that Green politics arose on the basis of a “new paradigm” worldview. That paradigm is more radically transformative than socialism. Its critique goes deeper. It takes the New Left’s desire for a participatory form of democracy and says something novel: scale is an important factor. The huge modern nation-states are always characterized by plutocracy, whether their productive assets are owned publicly or privately.

Mega-scale institutions are never conducive to participatory democracy. That recognition is the basis for the key value: Decentralization. It represents a new direction for our civilization yet hearkens back to the sanity of Indigenous lifeways.

Limits and balances

Deep Greens appreciate the concept of limits and the need to bring economic relations into harmony with the natural world. We believe the best way to do so is to transition toward bioregional economies and to return power to local communities. Bioregional economics calls on us to come to know our own home territory intimately and to try and meet as many of our needs as possible from it, as suggested by the key value: Community-based Economics. Thus, Greens should encourage a revitalization of traditional ecological knowledge and rural living skills.

There is wide recognition that we’re nearing the end of the fossil fuel era, a period of time that allowed for enormous population and industrial growth. Even if we weren’t dealing with the issue of climate change caused by industrial pollution of our atmosphere, we would have to face the reality that the age of cheap and easily accessible energy is over. The challenge of scaling down so that we can continue to meet basic human needs will require creative simplification. The emphasis should be on reducing our energy usage by cutting back wasteful over-consumption, improving efficiency, and reversing the trend of increased energy consumption per person.

Going forward, we’ll have to be thinking in terms of resilience and adaptation. This will require prioritizing the rejuvenation of local community life. It will be much easier to transition together in community, rather than person-by-person or family-by-family.

At the proper scale, a nation or bioregion could be conceived of as a community of communities. The health of all must be a general concern. The poverty of any must be unacceptable. Under present circumstances, in our country, expenditures on militarism stand in the way of such objectives. Our military is the most wasteful industry on the planet. Few things cause more immediate and direct harm to communities and ecosystems than war. Any country that spends more on war than on schools has lost its mind. Any country that claims to stand for freedom cannot strive for imperial power without losing its soul, bankrupting its people, and eliminating real democracy. Transitioning away from militarism to a foreign policy based on peaceful diplomacy and justice means that most of the billions of dollars now going to fund wars and weapons can be redirected toward social, ecological, and communitarian regeneration.

Deep Greens take seriously our responsibility to propose solutions and help craft legislation that can foster a transition to a better society. But we are keenly aware of how presumptive it would be to claim that we advocate from a position of certitude or special enlightenment. The “consciousness raising” / social engineering mentality of the left has never been appealing to the masses. It should be avoided. Rather than trying to pre-determine universalist prescriptions, Greens should be notable as helping to cultivate an ethos of participatory democracy, the ultimate objective being to return decision-making power to the people.

For example: We have no desire to pre-determine specific property relations. Private enterprise might work best under certain circumstances, public enterprise might be preferable under other circumstances. In either case, scale and localization are major factors of consideration. It may very well be that in a Green world we could expect to see decentralized polities handling the issue of economic relations in diverse ways — some more socialistic, some based more on private forms of enterprise, some with mixed economies. Industrial-scale corporate capitalism has been ruinous in the modern period, no doubt, but the track record of industrial-scale bureaucratic socialism has not been any more satisfactory.

Toward the greening of society

We realize that there are no “quick fixes.” Unsustainable modern lifeways are a product of thousands of years of misguided civilizational values and exploitative practices. They have enormous momentum, and so “turning the ship of state” surely will take time. Nonetheless, every day we can be endeavoring to incrementally build the new society within the shell of the old. Every day we can be fostering the dramatic cultural U-turn that will open pathways toward the “greening of society,” i.e., toward a future where we live more lightly in a material sense but benefit from the enrichment of healthier relationships with each other, with other creatures, and with the natural world.

We are facing unprecedented challenges in this new century, but, together, we can meet them if our collective effort is guided by the principles of ecology, democracy, justice, peace, and community. Deep Greens believe that there is a basis for optimism. We are confident that a truly Green analysis, politics, and praxis can show the way forward to a healthier, more sustainable, and more beautiful world.

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A Statement on the Climate Crisis by Green Party Elders

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A Statement on the Climate Crisis by Green Party Elders – May 26, 2020 We remember when the world had twice as many animals and half as many people as it does in 2020. When we were young ther…

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Green Party Elders Caucus Public Statement on SB 3247 Fracking Ban Act.docx

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Elders Rising (Facebook) - Elders (in Utah) working together on climate justice to assure a livable world for the future generations of all species.

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Elders Rising. 469 likes · 1 talking about this. We are elders working together on climate justice to assure a livable world for the future generations of all species. See event link for more!

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Healthcare and Elders: Not for the Weak of Heart

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Healthcare and Elders: Not for the Weak of Heart

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Green Party Elders Webinar

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The Green Party Elders say NO! to endless wars

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The Green Party Elders say NO! to endless wars

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The impact of the Ukraine invasion has had devastating impacts on the elderly. Increasing numbers of studies are emerging from research of elders there with alarming statistics and anecdotal information as elders have become at increased risk of displacement, institutionalization, living in dangerous conditions, accelerated decline in health, and more.

The world’s military spending continues to increase, with a major portion coming from NATO countries and the United States defense budget is the largest. As a result, the planet is in peril. Areas that support human needs are cut, more and more people are pushed into poverty and our most vulnerable populations, including the elderly, experience the greatest of these impacts to their lives.

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Poverty Among the Population Aged 65 and Older – Congressional Research Service – summary points

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Poverty Among the Population Aged 65 and Older – Congressional Research Service – summary points

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People aged 80 and older have a higher poverty rate than other aged people. Approximately 11.1%of people aged 80 and older lived in poverty, compared with poverty rates of 9.2% among individuals aged 75-79, 7.4% among those aged 70-74, and 8.4% among those aged 65-69.

Women aged 80 and older had the highest poverty rate among older women and men in all age groups at 13.6% for women aged 80 and older.

Individuals aged 65 and older who were not married at the time of the survey generally had a higher poverty rate than those who were married and living together with spouses.

Among women aged 65 and older, about 14.4% of widows,15.8% of divorced women, and 16.9% of never-married women had total incomes below the official poverty threshold compared with 4.7% of married women.

Among individuals aged 65 and older, poverty rates were also high among never-married men at  18.6%.

Poverty rates vary by race and Hispanic origin. Hispanic origin is distinct from race, and people may identify with one or more races.

In 2019, the poverty rate was 18.0%among those identifying as Black or African American compared with 17.1% for those identifying as Hispanics, 9.3% for the Asian population, and 6.8% for the non-Hispanic White population.

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Access Disparity and Health Inequality of the Elderly: Unmet Needs and Delayed Healthcare

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Access Disparity and Health Inequality of the Elderly: Unmet Needs and Delayed Healthcare

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Access Disparity and Health Inequality of the Elderly: Unmet Needs and Delayed Healthcare

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The purpose of this study is to investigate healthcare access disparity that will cause delayed and unmet healthcare needs for the elderly, and to examine health inequality and healthcare cost burden for the elderly. To produce clear policy applications,…

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Aged people are too often ignored and denied their full human rights

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Aged people are too often ignored and denied their full human rights

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“Older people have the same rights as others. Because of their vulnerability they need special protection and already the Universal Declaration of Human Rights stated specifically that elderly persons have the right to security. Many of the subsequent human rights treaties stipulate basic rights for aged people, one example is the revised European Social Charter. However, the rights of old persons are still often ignored and sometimes totally denied. They suffer from widespread perceptions that they are non-productive and worthless in modern society. It is time for a more constructive debate on how human rights for the older generation can be ensured.”

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Aged people are too often ignored and denied their full human rights - Commissioner for Human Rights - www.coe.int

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A collection of articles and recordings about Medicare

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Resources on the Impact of War and Military Spending on Elders

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Resources on the Impact of War and Military Spending on Elders

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Raging Grannies - We are out in the streets promoting peace, justice, social and economic equality through song and humour.

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American Psychological Association “Fighting Ageism” 2003 

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American Psychological Association “Fighting Ageism” 2003 

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“Not only are negative stereotypes hurtful to older people, but they may even shorten their lives, finds psychologist Becca Levy, PhD, assistant professor of public health at Yale University. In Levy’s longitudinal study of 660 people 50 years and older, those with more positive self-perceptions of aging lived 7.5 years longer than those with negative self-perceptions of aging. The study appeared in the Journal of Personality and Social Psychology (Vol. 83, No. 2).”

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The number of Americans 60 and older is growing, but society still isn't embracing the aging population, geropsychologists say. Whether battling "old geezer" stereotypes or trying to obtain equal standing in the workplace, those who are 60 or older may all too often find themselves the victims of ageism.

In fact, in a survey of 84 people ages 60 and older, nearly 80 percent of respondents reported experiencing ageism--such as other people assuming they had memory or physical impairments due to their age. The 2001 survey by Duke University's Erdman Palmore, PhD, also revealed that the most frequent type of ageism--reported by 58 percent of respondents--was being told a joke that pokes fun at older people. Thirty-one percent reported being ignored or not taken seriously because of their age. The study appeared in The Gerontologist (Vol. 41, No. 5).

And what's worse, ageism also seeps into mental health care. Older patients are often viewed by health professionals as set in their ways and unable to change their behavior, aging experts say. Mental health problems--such as cognitive impairment or psychological disorders caused at least in part by complex pharmacological treatments--often go unrecognized and untreated in this growing demographic, many researchers believe.

The deficit in treatment comes at a time when those over the age of 85 make up the fastest-growing segment of the U.S. population. Nearly 35 million Americans are over 65 years old, according to the 2000 U.S. Census, and that number is expected to double by 2030 to 20 percent of the population.

Those numbers come as no surprise to geropsychologists, who--as they mark Older Americans Month this May--continue working to get the word out about the need for better elder care. Their ultimate aim is to expand training and research opportunities in this area and eliminate ageism in all facets of society--from demeaning stereotypes portrayed in the media to the public's personal biases.
The effects of ageism
Not only are negative stereotypes hurtful to older people, but they may even shorten their lives, finds psychologist Becca Levy, PhD, assistant professor of public health at Yale University. In Levy's longitudinal study of 660 people 50 years and older, those with more positive self-perceptions of aging lived 7.5 years longer than those with negative self-perceptions of aging. The study appeared in the Journal of Personality and Social Psychology (Vol. 83, No. 2).

On the other hand, people's positive beliefs about and attitudes toward the elderly appear to boost their mental health. Levy has found that older adults exposed to positive stereotypes have significantly better memory and balance, whereas negative self-perceptions contributed to worse memory and feelings of worthlessness.

"Age stereotypes are often internalized at a young age--long before they are even relevant to people," notes Levy, adding that even by the age of four, children are familiar with age stereotypes, which are reinforced over their lifetimes.

Fueling the problem is the media's portrayal of older adults, Levy says. At a Senate hearing last fall, Levy testified before the Special Committee on Aging about the effects of age stereotypes. Doris Roberts, the Emmy-award winning actress in her seventies from the T.V. show "Everybody Loves Raymond," also testified at the hearing.

"My peers and I are portrayed as dependent, helpless, unproductive and demanding rather than deserving," Roberts testified. "In reality, the majority of seniors are self-sufficient, middle-class consumers with more assets than most young people, and the time and talent to offer society."

Indeed, the value that the media and society place on youth might explain the growing number of cosmetic surgeries among older adults, Levy notes. Whether this trend is positive or negative in combating ageism is one of many areas within geropsychology that needs greater research, she says.
What can psychologists do?
Psychologists need to respond to ageism the same way they do when a person is discriminated against because of race or a disability, says Jacqueline Goodchilds, PhD, a psychology professor at the University of California, Los Angeles.

Goodchilds, on behalf of APA's Committee on Aging (CONA), drafted a resolution against ageism that was approved by APA's Council of Representatives in February 2002. The resolution says that APA is against ageism "in all its forms" and emphasizes APA's commitment to support efforts to eliminate it.

"APA was against racism, sexism and all the other 'isms'--it made sense to be against ageism too," Goodchilds says of the resolution.

Other APA groups are also working to combat ageism through funding, training and federal policies supporting geropsychologists. For example, one APA initiative--through the Graduate Psychology Education (GPE) program--recently received $3 million for geropsychology training this year. The funding will be devoted exclusively to training geropsychologists in mental and behavioral-health services for older adults through APA-accredited programs.

Increasing the number of doctoral-level trained geropsychologists as well as making age-related information more available to researchers, practitioners and students are top objectives for CONA. One of the group's recent efforts is to get more aging content incorporated into all levels of schools' curricula.

"We need to raise the consciousness of the need for aging material," says CONA chair Forrest Scogin, PhD, a University of Alabama psychology professor. "There needs to be a greater awareness of who the older adults are--they are a diverse group. Ageism and stereotypes just don't work."

The workplace also needs psychologists' attention, says Harvey Sterns, PhD, president of APA's Div. 20 (Adult Development and Aging) and director of The University of Akron's Institute for Life-Span Development and Gerontology. The Equal Employment Opportunity Commission has reported a more than 24 percent increase in the number of age-discrimination complaints filed this year compared with the previous two years. Employees over the age of 40 are often considered "old" and not offered the same training, promotion opportunities and pay as younger colleagues, Sterns says.

Div. 20 is working to counteract such workplace and other age stereotypes by addressing the need for more trained geropsychologists and promoting age-friendly environments for the growth and development of older adults. "There is a long tradition within APA of dealing with these issues, but that doesn't mean they don't have to be revisited with intensity over and over again," Sterns says. "This doesn't go away."

The key, Scogin notes, is educating psychologists and the general population alike about America's growing elderly population. "If we have people--from secondary education to continuing education, to professionals--with a greater awareness of aging as an important component, then that could have an impact on reducing ageism."

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The number of Americans 60 and older is growing, but society still isn't embracing the aging population, geropsychologists say. Whether battling "old geezer" stereotypes or trying to obtain equal standing in the workplace, those who are 60 or older may all too often find themselves the victims of ageism.