It's the law.
Did you know that this Monday, August 21, is National Senior Citizens' Day?
Neither did I. But it is!
How are you going to spend National Senior Citizens' Day? I was thinking about playing shuffleboard, telling some kids to get off my lawn, and asking my grandson to explain to me what Facebook is.
But enough kidding around. This is a law blog, so we'll honor the occasion by talking about the Age Discrimination in Employment Act, our federal age discrimination law. How much do you know?
Ooh, I feel a quiz coming on . . .
No. 1: How old do you have to be to be a senior citizen?
E. It depends on whom you ask.
ANSWER: E. For example, this website says you have to be over 60 to be a senior citizen. But this website says you have to be 65. And meanwhile, the senior discounts start at 55, don't they? (I'm so vain, I gladly pay the "young person" prices, so I'm not sure about those discounts.)
No. 2: The ADEA protects people 40 and older from age discrimination, but once you hit 70, you lose your protection because you shouldn't be working when you're that old.
ANSWER: False. Well, it is true that the ADEA protects people age 40 and older. But there is no upper limit. It's against the law to discriminate because of age even against our two currently leading Presidential candidates. (If they were regular employees, which they're not.)
No. 3: Maybe the ADEA has no upper limit, but employers can have mandatory retirement at certain ages, can't they?
ANSWER: Nope. With limited exceptions, it violates the ADEA for employers to flatly require employees to retire when they hit a certain age. That's not to say the employees can't retire voluntarily, or be involuntarily terminated for reasons that are sometimes associated with age, such as refusal to use current technology needed for the job, or mental deterioration that affects job performance.
No. 4: Supervisor Melissa gets along great with her employees in "the protected age group," but she can't stand Gen Z. She gives the kids all the worst assignments, the paltriest pay increases, and the most disrespectful treatment. The kids get fed up and decide that they will sue Melissa and their employer for age discrimination under the ADEA. They meet with a well-respected local employment lawyer, whose reaction is
A. "Great idea! Stick with me, and we'll drive that company into the ground!"
B. Hysterical laughter.
C. "I'm sorry. The ADEA doesn't work that way."
D. "I'm sorry. The well-known legal doctrine of res ipsa loquitur defeats your claims."
ANSWER: C. (B is also correct but rude.) The ADEA provides no protection to anyone under the age of 40. So, no matter how nasty Melissa is to her young employees because of their age, they can't sue her under the ADEA. (However, some state laws -- Minnesota and New Jersey immediately come to mind -- protect employees from age discrimination at any age. And, of course, those youngsters might be able to assert other claims. I'm sure their well-respected local employment lawyer will be delighted to assist.)
No. 5: Which of the following have been recognized as "code words" for discrimination against older workers?
A. "Digital natives," as in "We hire only digital natives."
B. "New blood," as in "We need some new blood around here."
C. "You're overqualified," as in "You've been in the workforce 25 years, so we don't want you around here."
D. "You're too old to cut the mustard," as in "You're too old to cut the mustard."
E. A, B, and C.
ANSWER: E. "Digital natives" refers to people who grew up with the internet. That rules out those of us who grew up when "technology" was a black-and-white RCA TV with an antenna and snow. "New blood" has long been recognized as code for "We need to bring in some younger people." "Overqualified" may or may not be code for age discrimination -- employers are sometimes justified in not hiring someone who is "too" qualified because of fear that they'll want too much money or become bored in the job and leave as soon as they can. That is not age discrimination. But it can sometimes be code for "older."
Telling an employee they're "too old to cut the mustard" is not "code." It's a direct statement of age discrimination.
Well, that was the quiz. Have a great weekend!
Oh, so you thought that quiz was too easy? How about this "Nightmarishly Hard Question"?
No. 6: You are terminating Joe, Louie, and Selena in a reduction in force. Joe is 59, Louie is 30, and Selena is 41. You want to give the employees a severance package in exchange for a release of claims. How will you get valid waivers of ADEA claims from Joe and Selena?
A. You give all three employees your standard agreement, which mentions the ADEA as one of the claims being released. Louie won't need it, but a little overkill can't hurt.
B. You give all three employees agreements that contain the language required by the Older Workers Benefit Protection Act, including 21 days to consider their agreements and seven days to revoke after they sign.
C. You give Louie whatever agreement you want (within reason). You give Joe and Selena agreements that contain all the language required by the Older Workers Benefit Protection Act, including 45 days to consider their agreements, seven days to revoke after they sign, and disclosures that explain the decisional unit, the reason for the RIF, and the ages and job titles of everyone who was offered a package (i.e., Joe, Louie, and Selena) and everyone in the decisional unit who was not offered a package. Plus some other information.
D. You give the agreement described in C to Joe, Louie, and Selena.
ANSWER: C. Because more than one employee is being terminated as part of the same "event," this is a "group termination," which means you have to provide Joe and Selena (at least) 45 days to consider the agreements, as well as the disclosures, in addition to meeting all of the other OWBPA requirements for a group termination. Answer D would be correct, too, but it's overkill since Louie is under 40.
5-6 correct: Spry, Baby, very spry!
3-4 correct: You are well preserved. Considering your age.
0-2 correct: You're too old to cut the mustard.
Just kidding! You all did great. And even though I didn't promise a prize for this quiz, I just had to get you something. Here ya go: