ADEA Coverage Begins At Age 40

from Spencer’s Benefits Reports: In a recent letter, the Equal Employment Opportunity Commission’s (EEOC) Office of Legal Counsel wrote an informal discussion on why the Age Discrimination in Employment Act (ADEA) only protects individuals age 40 and older from employment discrimination. The ADEA does not prohibit employers from using minimum age requirements to exclude younger people. The letter was in response to an inquiry from a member of the public.

The EEOC noted that the ADEA states that it prohibits discrimination in employment, but limits the coverage “to individuals who are at least 40 years of age.” The Supreme Court found that the ADEA only protects older workers against discrimination that disfavors them as compared to younger workers, even when all of the workers are at least 40 years old (see General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004)). Therefore, the ADEA would not prohibit minimum age requirements even if the minimum age requirement were set at age 40 or above, because the minimum age requirement would benefit relatively older workers and only harm relatively younger workers.

Congress had considered, but ultimately rejected, adding age as a protected basis alongside race, color, religion, sex, and national origin in Title VII of the Civil Rights Act of 1964, the EEOC noted. Instead, the Department of Labor (DOL) was instructed to make a study of discrimination in employment due to age and this study helped Congress when drafting the ADEA. The DOL report “was devoid of any indication that the [DOL] had noticed unfair advantages accruing to older employees at the expense of their juniors.” The EEOC noted that, “To the contrary, the report suggested that younger workers, who at the time made up the majority of the electorate, had a responsibility to support efforts to end arbitrary discrimination against older workers, even though they ‘are not themselves adversely affected by it and may even be its temporary beneficiaries.’”

Ultimately, Congress decided the coverage threshold age in the ADEA should be age 40, because “testimony indicated this to be the age at which age discrimination in employment becomes evident.” Congress refused calls to limit coverage under the ADEA to even earlier ages. When interpreting this limitation in Cline, the Supreme Court remarked that, “[i]f Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under age 40.”

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