The history of the legislation goes back to the creation and passage of the Civil Rights Act of 1964 and specifically Title VII, which made it illegal for employers to discriminate based on race, color, religion, sex and national origin.

Notice anything missing from that last sentence?

An amendment to include age discrimination as one of the protected categories in Title VII failed. Instead, Congress created a commission to study the issue of age discrimination, and that commission determined — without question — that workplace discrimination was rampant at the time (mid-1960s), with 50 percent of employers using age limits to deny jobs to workers 45 and older. That report led to passage of ADEA in 1967. It sought to “promote employment of older persons based on their ability rather than age [and] prohibit arbitrary age discrimination….”

When he signed ADEA into law, on Dec. 15, 1967, President Lyndon B. Johnson remarked: “This act does not compel employers and labor unions and employment agencies to choose a person aged 40 to 65 over another person. It does require that one simple question be answered fairly: Who has the best qualifications for the job?”

Fifty-two years later, that question remains: Are today’s jobs going to, and being performed by, the best-qualified workers, regardless of age? Unfortunately, in many cases the answer is no. Part of the problem is the law itself. Although ADEA was supposed to serve as an age-based equivalent of the Civil Rights Act, it never granted age the same level of legislative respect as race, gender or religion, and that’s why, in part, its idealistic goals have never been achieved.

Two key factors rendered it, from its inception, weaker than Title VII.

Lack of damages: Even if you win an age discrimination suit against an employer — and even if you prove the discrimination was intentional — the most you can be awarded is twice your lost back pay plus attorney fees if you prevail. Nothing for pain and suffering. So unless a company is facing a large class action suit, it has little to lose. In fact, many attorneys won’t even take on individual age-bias complaints for this reason. “This is not the situation for other types of discrimination,” explains attorney Alden. “For race, sex, national origin, disability and all the others, the employee, if successful, is entitled to compensatory damages and attorney fees.”

“Reasonable factors” are considered in employer’s defense: ADEA established two types of age discrimination: intentional (“disparate treatment”) and unintentional (“disparate impact”). The latter is defined as an employment policy that seems neutral but adversely affects older workers. An example might be a company deciding to lay off all its vice presidents. Nothing wrong with that on the surface, but since VPs are usually senior people, older workers would be hardest hit. Under ADEA, disparate impact discrimination is permitted if it’s based on “reasonable factors other than age.” So all a company would have to do to sidestep ageism claims is prove the layoffs were financially necessary.

That all said, although imperfect the ADEA did afford older employees in the U.S. protections against age discrimination.

But then the law came under review by the Supreme Court, and its rulings further weakened the protections it granted to older workers. First the court upheld and even widened the damages and reasonable-factors loopholes. In 1993 it ruled that the Hazen Paper Co. did not discriminate against 62-year-old Walter Biggins when it fired him a few months before he became vested in its pension plan. The company argued that his dismissal was based on cost savings, not age, and the court agreed. Since then the Hazen decision has been relied on to narrow ADEA’s reach and to permit arbitrary actions based on inaccurate or stigmatizing stereotypes about age.

Then, in 2009, came Gross v. FBL Financial Services Inc., in which the Supreme Court essentially gutted ADEA. Fifty-four-year-old Jack Gross was reassigned in 2003 from his position as a claims administration director at FBL. His replacement was in her early 40s. The following year, he sued for age discrimination and the case ended up at the Supreme Court. It ruled that in order to prove age discrimination, one must show that age was the determining factor. In other words, even if you proved that your employer intentionally discriminated against you because of your age, if it was not the most important factor in the actions it took, you do not have a case. In addition, the Gross decision placed the burden of proof entirely on the plaintiff, as opposed to putting the burden on the organization to prove it didn’t discriminate, creating yet one more hurdle for older workers to overcome.

The rulings in Gross and other cases have not escaped the attention of corporate America. One Wall Street recruiter told the AARP Bulletin that age discrimination is increasing in the financial sector. “If companies know they can get away with something, they’ll do it,” he says. “It’s like an episode of The Simpsons where Mr. Burns is rubbing his hands together with glee and saying, ‘We’re going to get rid of these senior people and save lots of money!’ ”

Other companies seem to discriminate against senior people in their hiring practices. AARP Foundation, which files age discrimination suits expected to establish significant legal precedents, is pursuing a case against PricewaterhouseCoopers, the accounting firm. The plaintiff, Steve Rabin, then 50, was rebuffed in his effort to obtain an associate position at PwC. At the time, he had an MBA and more than 10 years of experience in accounting services. The complaint asserts that a PwC manager asked Rabin whether he’d be able to “fit in” with younger employees and made other somewhat derogatory age-related comments. More than 3,000 other plaintiffs have joined Rabin in a class action suit against PwC. The company denies any wrongdoing, arguing that the plaintiffs have failed to offer “some reliable and verifiable way to identify who met the minimum qualifications.”

It should be noted that most states also have laws against age discrimination — some are stronger than federal law; some weaker. California, for example, unlike ADEA, allows for both compensatory and punitive damages, and New Jersey explicitly permits employment discrimination against employees over age 70. The former may be why, in some years, California has seen nearly three times as many complaints of age discrimination than its residents report to the EEOC. Some states have lower burdens of proof, and state laws usually cover employers that the federal law does not, such as businesses with fewer than 20 employees. AARP is actively trying to improve state age discrimination laws, most recently in Connecticut, Oregon and New Jersey.

The company perspective on age bias

Frank Cania, president of HR Compliance Experts, believes that ageism is often considered by human resource departments as being on par with other types of workplace discrimination but that HR personnel are not as aware of it as they should be. Although a number of states have recently passed laws requiring employers to provide annual sexual harassment training, he says there’s no similar legislation or mandated programs that exclusively target ageism. “The average HR person would say, ‘Oh, yeah, that’s definitely a problem; it needs to be addressed,’ ” he explains. “But then they may place a job ad using terms like ‘fast-paced environment, energetic, technology ninja’ or ‘We work hard and party harder.’ ”

Unsurprisingly, tech companies are some of the biggest age discriminators. With Facebook CEO Mark Zuckerberg famously declaring in 2007 that “young people are just smarter,” Silicon Valley has become a poster child for the youth work culture. According to a 2016 report by Statista, the average median employee age at 17 top tech companies was 32, compared with 42 for the total U.S. workforce. That doesn’t appear to be a coincidence. In 2019, Google agreed to pay $11 million to settle the claims of more than 200 job applicants who said they were discriminated against because of their age.

Older tech companies are not immune to the problem. A 2018 ProPublica investigation alleges that IBM deliberately engineered the dismissal of an estimated 20,000 employees over age 40 in a five-year period. “In making these cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination,” the article asserts.

The EEOC is looking into these charges, and a class action suit has been filed. But whether the company will ever be held accountable remains to be seen. One workplace consultant who requested anonymity told the AARP Bulletin that IBM’s strategy was “brilliant,” explaining that its supervisors and attorneys were exquisitely aware of how difficult it is to successfully prosecute age discrimination, and they took full advantage of that. Last year, in response to the allegations in that suit and several individual suits, IBM told Bloomberg: “We have reinvented IBM in the past five years to target higher value opportunities for our clients. The company hires 50,000 employees each year.”

EEOC: A watchdog loses its bark

The EEOC is supposed to be our police force in all this. Its job is to enforce federal laws that protect employees or job applicants from all types of workplace discrimination. Its mandate is also one of leadership: It’s charged with initiating investigations when warranted and being the overall champion of worker rights.

But when it comes to age discrimination, the EEOC is struggling to keep up, and to bear down. An analysis by the Washington Post found that of 205,355 total age discrimination complaints filed with the agency from 2010 to 2017, just 1 percent resulted in a finding of discrimination. That alone is not dispositive: It’s possible that the vast majority of these complaints are not actionable.

But the numbers seem to tilt toward a finding that the EEOC has not been offering enough help in this realm. Indeed, according to the organization’s own data, it brought only 10 age discrimination suits in 2018. That’s a minute number compared with the disability (84) and sexual harassment (41) discrimination cases it brought that year. When one considers how difficult it is for an individual to file a complaint, the 8 months, on average, it takes for any sort of resolution, and the paltriness of the compensation (if any), you have to wonder whether the hassle is even worth it.

Cathy Ventrell-Monsees is an attorney and senior adviser at the EEOC. She acknowledges the numbers but explains that the agency is trying to be strategic. This means emphasizing tools such as mediation and settlements and bringing to court only those cases with the greatest potential impact. “For example, hiring is a big priority for us right now,” she explains. “Our researchers are looking at online hiring systems and algorithms that can incorporate biases in the job-selection criteria.”