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Discrimination is Discrimination: Time to Toughen the Law

Older workers contribute valuable experience and knowledge to their employers and to the economy. There’s no doubt that today’s older Americans are living longer, they are healthier, and they are working longer than previous generations. Already, workers age 50 and older make up over one-third of the labor force, and those age 65-plus are the fastest-growing age group in the workforce.

But despite these trends and laws designed to prevent age discrimination, bias in the workplace is still common and often not taken seriously. More than six in 10 older workers report that they have seen or experienced age discrimination in the workplace.

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AARP is calling on Congress to strengthen the laws against age discrimination so that employers and the courts treat age discrimination as seriously as other forms of discrimination.

Challenges Ahead

Passed in 1967 during the nation’s civil rights era, the Age Discrimination in Employment Act (ADEA) prohibits job discrimination against workers 40 and older. The ADEA and subsequent improvements to the law brightened the employment landscape for older workers. And for decades, the courts treated age discrimination like other forms of job discrimination: Proven age discrimination could not play any role in an employer’s actions.

But over the past couple of decades, courts have interpreted the ADEA in ways that give older workers far less protection than other civil rights laws. In 2009 the Supreme Court changed the law, making it much harder to prove age discrimination than it is to prove other types of job discrimination, such as race or gender bias. By heightening the burden of proof, the Court signaled to employers that some amount of proven age discrimination is legally allowed.

It’s now harder to win age discrimination cases, and companies committing age discrimination aren’t punished as harshly under the law as those found guilty of other types of discrimination. Older workers can only hope to recover the lost pay they should have received. They cannot recover damages for other losses.

Fifty years later, age-based stereotypes and discriminatory practices remain all too pervasive. Discrimination is discrimination. Age discrimination is just as wrong as other forms of discrimination. Congress needs to fix the law so that all types of job discrimination are treated the same by the courts.

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AARP Guiding Principles

As you consider candidates, keep in mind AARP’s guiding principles on employment:

  • Protect people from discrimination. Freedom from discrimination is a fundamental right. All workers—regardless of age, sex, race, ethnicity, disability, sexual orientation, gender identity or expression, religion, national origin or family-caregiver status—deserve to be protected from arbitrary discrimination.
  • Expand employment opportunities and economic security. Employment policy should remove barriers and expand opportunities for all who are willing and able to work; minimize unemployment and underemployment; and promote economic security, so that individuals and their families can maintain a decent standard of living, enhance individual dignity and foster economic growth.
  • Help vulnerable populations. This group should receive special help in finding and keeping employment capable of providing a decent standard of living.
  • Increase job quality. The government and employers should act to address deteriorating job quality for all workers, including stagnating wages, a decline in positions with benefits, unpredictable schedules and a rise in in contingent employment. 

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