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For the ADEA’s 50th birthday: An age discrimination quiz

By: Robin Shea

July 14, 2017

The Age Discrimination in Employment Act recently celebrated its 50th birthday (it doesn’t look a day over 49). This calls for an age discrimination quiz!

Question 1: What age group is protected from age discrimination under the ADEA?

A. All age groups. Discrimination based on age is never ok, whether you are young or old.

B. Ages 40 to 70.

C. Ages 40 and up, with no upper limit.

D. Ages 40 and up, unless you are an athlete or a model, in which case it’s ages 30 and up.

ANSWER: C. Some states have laws that prohibit all age discrimination — including discrimination against the young — but the ADEA doesn’t protect people under age 40.

Question 2: Which of the following could be considered “code words” for age discrimination?

A. “We’re looking for someone with a high energy level.”

B. “We’re looking for digital natives.”

C. “You can’t teach an old dog new tricks.”

D. “Have you given any thought to when you want to retire?”

E. C and D.

F. All of the above.

ANSWER: F (all of the above). “High energy level” is often used as a euphemism for “young.” The stereotype, of course, is that older employees lack energy. (On the other hand, in the most recent presidential primaries, then-70-year-old Donald Trump gave the younger Jeb Bush a lot of grief by calling him “low-energy Jeb.” In that case, I’d say it was not an age-based remark.)

Digital natives are, by definition, young because a “digital native” is someone who grew up with video games, personal computers, email, and smart phones. (As we all know, people who did not grow up with tech are completely incapable of learning how to use it. *sarc*)

Although if “digital native” just means someone good with technology, then it should be all right.

C (“can’t teach an old dog new tricks”) probably needs no explanation. D (asking about retirement) could be bad depending on the circumstances. It is dangerous for an employer to initiate a conversation with an older employee about retirement. On the other hand, if the question is part of a discussion that the employee initiated, then it might be fine.

Question 3: Which of the following is usually a very strong defense to an age discrimination (termination) claim?

A. The person who made the decision to terminate the employee is actually older than the employee.

B. The person who made the decision to terminate the employee is the same person who made the decision to hire the employee a short time ago.

C. The employee had a low energy level.

D. The employee wasn’t good with the latest technology.

ANSWER: B. This is known as the “same hirer/firer” rule. If you hired an employee not too long before you fired him, the courts presume that age was not the reason for the termination — otherwise, you would never have hired him in the first place. The rule doesn’t apply if you hired the employee 20 years ago, when he was 40, and then fired him today when he was 60. It also doesn’t apply if you hired the employee but your boss ordered you to fire him.

Answer A (firer is older than firee) is helpful, but it’s not a defense in itself because older bosses do sometimes discriminate against their underlings based on age or age-based stereotypes.

Answers C and D might be good defenses if you have some concrete proof of slackness, or ineptness with technology, but these conclusory statements would not be enough in themselves.

Question 4: A recent study on age discrimination in hiring created three fictional groups of job applicants with identical qualifications: a “young” group (age 29-31), a “middle-aged” group (age 49-51), and an “old” group (age 64-66). The fake applications were submitted to real employers who were hiring. Not surprisingly, the “young” group was most likely to be called back for interviews, followed by the “middle-aged” group. The “old” group was least likely to get a callback, but a subgroup of the “old” group was extremely unlikely to get a callback. What subgroup was that?

A. Minority males, age 64-66.

B. Asians, age 64-66.

C. Men, age 64-66.

D. Women, age 64-66.

ANSWER: D. Women in the “old” group were overall significantly less likely to get a callback than men in the “old” group. Here is a link to the study. The only “catch” — and it’s an important one — is that the “female” and “male” applications were submitted for different types of jobs. “Women” applied for administrative assistant and secretarial jobs. “Men” applied for janitorial and security guard jobs. The only job category to which “males” and “females” both applied was retail sales. In retail sales, older women actually got more callbacks than older men, but there was a bigger gap within the “female” group based on age.

Question 5: CFO Mary is reviewing her financially struggling company’s labor costs, and she determines that 10 employees are overcompensated based on market rates for their positions. She recommends that the employees’ pay be cut 50 percent and that they be offered severance packages if they don’t like it. All 10 of the employees are 40 or older, eight of them are over 50, and five of them are over 60. Assuming Mary can prove she is genuinely motivated by a desire to cut costs, would these employees have an ADEA case?

A. Yes.

B. No.

ANSWER: No. If these changes are being made to reduce expenses, then the employees would not have an ADEA case (but watch out for state and local laws that may provide more protections to employees). The Supreme Court ruled years ago that a desire to reduce costs is not tantamount to age discrimination, even if older employees (who tend to be more highly compensated overall) are affected the most.

Of course, the employees (assuming they decide to sue) will try to show that “cost” was just an excuse to get rid of older employees. For this reason, the company and Mary would want to have strong evidence that cost was, in fact, their motivation.

(OFF TOPIC, BUT IMPORTANT: Although it is usually legal for an employer to make a pay reduction for legitimate, non-discriminatory reasons, most state wage and hour laws require that advance written notice of the reduction be provided to the affected employees.)

HOW’DJA DO?

5 correct: Greatest Generation. (And still sharp as a tack!)

3-4 correct: Baby boomer. (When did you say you were going to retire?)

1-2 correct: Gen Xer. (Congratulations! That’s a good score for someone who just entered the protected age group.)

0 correct: Millennial. (Don’t worry, Honey – you have plenty of time to learn, and YOU ARE AWESOME!!!! ♥♥♥)

(Just kidding, everybody — have a great weekend!)

By: Robin Shea

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