TSLF Employment Blog

Age Discrimination And Covid-19: What Are The Rights Of Older Employees?

The United States continues to move forward with the reopening process, despite the increasing number of coronavirus infections and deaths. Many Americans continue to express their displeasure and resistance to calls for social distancing and mask wearing.

Given this environment, many employers might be wary of having the coronavirus spread among its workers. So it’s understandable that an employer will want to identify its employees that are at high risk for coronavirus infection or severe complications.

Even with the best of intentions, an employer’s concern for its employees could still lead to unlawful discrimination. Once such example applies to employers discriminating against their older workers.

Older Adults Are at Higher Risk

The Centers for Disease Control and Prevention (CDC) has identified several groups of individuals that are at higher risk for severe complications as a result of a coronavirus infection. One of these groups includes older adults.

The CDC states that the risk for a severe illness from the coronavirus goes up with age, with 80% of reported coronavirus deaths being adults over the age of 65.

Given these grim statistics, an employer might make decisions that single out the older employees. This could include a range of motivations from wanting to protect older workers to viewing them as more expensive employees and using the coronavirus as an excuse to get rid of them.

For example, an employer might make the following changes to its business operations that unfairly affect older workers:

  • Moving an older worker from the front office to the back office, away from contact with the general public and substantially altering the worker’s job duties.
  • Furloughing only older workers and allowing younger workers to continue working.
  • Only mandating that older employees wear personal protective equipment, such as face shields or face masks.
  • Firing older workers due to the belief that they will be more expensive to keep on as employees due to potentially higher insurance or paid time off costs.

This type of unfair behavior, regardless of an employer’s motivations, might constitute illegal discrimination under the Age Discrimination in Employment Act of 1967.

The Age Discrimination in Employment Act of 1967 (ADEA)

The ADEA prohibits covered employers from discriminating against employees on the basis of age. However, these protections only apply to employees 40 years of age and older.

Age discrimination is forbidden in basically all aspects of employment, including hiring, harassment, firing, compensation, job duties and benefits (with help from the Older Workers Benefit Protection Act of 1990).

Even if an employer has a policy that applies to employees of any age, that policy could still violate the ADEA if it negatively affects employees 40 years of age or older and is not based on a reasonable factor other than age.

Like many other federal antidiscrimination laws, the ADEA doesn’t apply to all employers. Rather, it covers state, local and federal government employers, as well as private employers with 20 or more employees. However, some states may have age discrimination laws that apply to more employers.

For instance, Virginia’s recently updated Human Rights Act bars all forms of age discrimination among employers with 15 or more employees. But if the age discrimination results in a firing, then the Virginia state law applies to employers with more than five but less than 20 employees.

Washington, D.C. does even better with its D.C. Human Rights Act. This law bans employers of any size from engaging in any form of age discrimination.

One of the more notable features of the ADEA is that it allows employers to treat older workers better than younger workers. An employer may discriminate against a younger worker, even if the younger worker is more than 40 years of age.

The ADEA does not allow retaliation of individuals who exercise a right under the ADEA, oppose a discriminatory practice or participate in a discrimination proceeding.

There are some exceptions to the ADEA’s protections. An employer can treat an employee who is at least 40 years old differently in some of the following situations:

  • Age is a bona fide occupational qualification and the employer can show that the age restriction is necessary to carry out the requirements of a particular position.
  • Certain executives or “high policymakers” can be forced to retire at the age of 65, but only if they will receive retirement benefits that provide a minimal level of compensation.

Enforcement of the ADEA

Employees who find themselves the victim of age discrimination can file a charge (also known as a complaint) with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discrimination. Federal employees need to act more quickly, as they only have 45 days to contact their EEO Counselor.

Should an employee take successful legal action under the ADEA, they may be able to recover:

  • Lost wages
  • Liquidated damages (equal to the amount of lost wages and usually only granted in situations where the age discrimination was intentional)
  • Attorney’s fees and court costs
  • Other appropriate legal or equitable relief, such as reinstatement or a promotion

The ADEA and the Americans with Disabilities Act of 1990 (ADA)

One of the rights not present in the ADEA is the right to reasonable accommodations because of age. But given how many older workers tend to have medical conditions, it’s possible that an older worker can ask for an accommodation if they have an ADA recognized disability.

The end result may be an older worker with a reasonable accommodation. But this benefit will come from the employee’s disability, not his or her age.

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