Douglas L. Stanley, Boyd A. Byers, Carolyn L. Matthews, Editors
Foulston Siefkin LLP

Vol. 14, No. 8
November 2007

BYERS' MARKET

Lordy, lordy, the ADEA turns 40

Boyd A. Byers

Forty is a mystical number in many cultures. In ancient Babylonia, the number was known as kissatuin, meaning "the excellent quantity." The great flood described in the Bible resulted from 40 days and 40 nights of rain. Forty is the only number, when spelled out in English, whose letters are in alphabetical order. And of course, 40 is the number of top songs Casey Kasem chronicled each week.

The number 40 is significant to HR professionals because it's the age employees become protected by the Age Discrimination in Employment Act of 1967 (ADEA). This year, the ADEA turns 40. To mark the occasion, let's take a stroll down memory lane and look back at some significant moments in the law's life.

ADEA through the ages

In 1967, hippies flocked to San Francisco during the Summer of Love. On the other side of the country, Congress passed the ADEA to protect workers ages 40 to 65. Lawmakers' primary concern was blatant age discrimination in hiring ― about half of all private job openings expressly barred applicants over age 55, and one-fourth precluded those over age 45. Employees were commonly subject to mandatory retirement.

By 1978, disco reigned, and ADEA protection was extended through age 70. The upper age limit was eliminated in 1987, but there are limited exceptions. For example, executives can be subject to a mandatory retirement age of 65 or higher if they're entitled to an annual retirement benefit of at least $44,000 per year and certain other criteria are met.

In 1990, Congress passed the Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA that prohibits employers from denying or limiting benefits to older employees because of age. The OWBPA also provides strict requirements that must be met for waivers of age discrimination claims to be valid and enforceable.

The U.S. Supreme Court decided several significant ADEA cases from the 1990s to the 2000s:

• A fired worker isn't required to show that he was replaced by someone under 40 (1996).
• The U.S. Constitution protects state government agencies from being sued under the ADEA (2000).
• The ADEA doesn't prohibit an employer from favoring older employees over younger workers when providing retiree health benefits, even if the younger workers are over 40 (2004). But state and local age discrimination laws may prohibit such a preference. New Jersey and Oregon have allowed claims of "reverse" age discrimination. Courts haven't yet decided whether the Kansas Age Discrimination in Employment Act, which prohibits age discrimination against anyone age 18 or older, prohibits discrimination against younger employees.
• The ADEA allows older workers to sue for age discrimination based on a "disparate impact" theory when an employer's age-neutral policy, practice, or other employment action unintentionally discriminates against them. But if the employer can show its action was based on a reasonable factor other than age, it doesn't violate the ADEA (2005).

Copyright 2007 M. Lee Smith Publishers LLC

KANSAS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kansas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.