In 2008, age discrimination charges rose nearly 30% from 2007. At the same time, the Supreme Court has narrowly interpreted the ADA, making it more difficult for workers to pursue age related claims. The EEOC feels that there is an "equal opportunity plague" of age discrimination facing older works. Steve Vogel, of the Washington Post, reported today that EEOC Acting Chairman Stuart Ishimaru, at a public hearing, questioned "whether ‘the public generally realizes that age discrimination is illegal.’ " Mr. Ishimaru went on to say that "Age discrimination is an equal opportunity plague…It is not limited to members of a particular class or a particular race. It is not limited to particular industries or particular regions. And it is not limited to a particular gender." Mr. Vogel also quoted acting Vice Chair Christine Griffin, as saying "it’s fair to anticipate age discrimination charges will rise as the financial crisis plays out." EEOC Commissioner Constance Barker was quoted as saying: "How often do we hear employers talking about getting fresh blood in?…What are they talking about? They want younger and cuter."
The AP reported that the EEOC is considering drafting new regulations to clarify how the recent Supreme Court rulings addressing age discrimination should be enforced. Senator Patrick Leahy, Chair of the Senate Judiciary Committee, last month mentioned that Congress may amend the ADEA in light of the Supreme Court rulings, just as they passed Lily Ledbetter Fair Pay Act to counter the Supreme Court’s decision in that case.
Practice pointer. In these tough economic times, when laying off or terminating employees, age is a factor that must be examined in determining who is let go. HR should be involved in all decisions concerning lay offs/terminations due to a reduction in force. A front line supervisor should not be making these decisions in a vacuum, due to the possible exposure to liability, not only for possible age discrimination but also for other types of discrimination under Title VII.