Old Workers Rule! (Age Discrimination Drools) - Guest Post

By Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Lawyers

Do you remember walking down the beach and seeing an older gentlemen wearing one of those delightfully tacky, yet funny, t-shirts stating, “Old Guys Rule!” You look at the shirt, then the man, and you smile thinking, “Yeah! That old guy does rule! More power to the old people!” Okay, maybe your thoughts weren't that dramatic, but you probably at least know someone over the age of 40 who still needs and/or wants to work, and who you are fond of. Or maybe, you are one of those 40+ workers declaring your own awesomeness. Since when did 40 become “old” anyway? Isn’t 40 the new 30? [Donna’s note: And here I thought 50 was the new 30.]

As a result of improving healthcare and standards of living, the number of people over the age of 60 is expected to increase to 2 billion by the year 2050. In the year 2000 there were only about 600 million people over the age of 60 worldwide. Our government has the responsibility of ensuring that older Americans are able to enjoy a decent standard of living, while contributing to society, as long as they want and are able to. The first step towards ensuring older Americans’ ability to make a living is to modify current laws that make it easy to discriminate against workers over the age of 40.

Currently, Federal Courts do not treat discrimination based on age the same as discrimination based on other categories of protected workers, such as race, sex, national origin and religion. An employee bringing suit based on one of these other protected categories only needs to demonstrate that the protected category was a contributing factor in the adverse employment decision. In such cases, the burden of proof then shifts back to the employer to show that it would have made the same decision regardless of the discrimination.

On the other hand, employees who claim that they were discriminated against due to their age must demonstrate to the Court that age was the “but for” cause of the adverse employment action.

This unequal treatment under discrimination laws appears to be changing. Just a few weeks ago, the Protecting Older Workers Against Discrimination Act (POWADA), a bi-partisan bill, was reintroduced to the House and Senate. This bill appears to have strong support from both parties and in both houses. Perhaps, this is because there are no Senators under the age of 40 and only a handful of Congressmen and Congresswomen under 40. Whatever the case may be, under POWADA, when an employee demonstrates discrimination was a “motivating factor” behind an adverse employment decision, the burden would then shift back to the employer to show that it would have made the same decision regardless of the unlawful discrimination.

POWADA would be a win for older employees who have been unfairly discriminated against in the workplace. All forms of workplace discrimination should be treated equally under the law, and POWADA would be a positive step towards making that a reality. If POWADA is enacted into law, the old guy on the beach will become that much cooler. He will now be able to keep his job, make more money, allowing him to buy a matching hat for his t-shirt! Perhaps it would read, “Old Guys Rule the Workplace.”