The coronavirus pandemic has raised many issues for employers and older employees.  Many employees, over the age of 40, are faced with questions and concerns about the potentially discriminatory decisions being made by their employers regarding layoffs, terminations and returning to the workplace.

A significant increase in age discrimination lawsuits is expected due to the pandemic. These claims will be based on the federal Age Discrimination in Employment Act (ADEA), which prohibits discrimination against workers age 40 and older, and state and local laws which protect older workers. The number of lawsuits is anticipated to increase in the coming months as more employees find out that they are not being recalled to work.

Higher Pay of Older Workers and Impact of Economic Downturn

Given the economic crisis, employers are seeking to cut costs in an effort to keep their businesses operational during this pandemic. These cost-cutting measures are having a disproportionate impact on older workers, who often make higher pay. Employers may seek to use the economic downturn as justification for engaging in age discrimination by terminating older employee, or not rehiring them.

Age discrimination tends to increase during economic downturns. EEOC data indicated an increase in age discrimination claims during and after the recession of 2007-2009. 15,573 charges were filed with the EEOC in 2019, as compared to 24,582 in 2008.

Drawbacks of the Age Discrimination in Employment Act (ADEA)

Unfortunately, addressing age discrimination under the ADEA is a particularly tough challenge.  Employees who have been discriminated against for other reasons, for example due to their race, gender, or sexual orientation can establish their claims by showing that their race, gender or sexual orientation was a motivating factor in the action taken against them.  However, a key drawback of the ADEA is that for employees to prevail in an age discrimination case they must prove that age was the determinative factor in the employer’s action against them.  This heightened standard for age discrimination claims is because of a 2009 U.S. Supreme Court decision, Gross v. FBL Financial Services, Inc., 557 U.S. 167. In Gross, the U.S. Supreme Court ruled that an employee must prove that age was the “but for” cause of the adverse employment action.

Another drawback of the ADEA, unlike other anti-discrimination laws, is its restrictions on the types of damages that an older worker can recover. While a victim of age discrimination can recover for economic damages, punitive and emotional damage awards (pain and suffering) are unavailable to them. However, state and local laws in New York which prohibit age discrimination allow for employees to recover these kinds of damages. The standard of proof required for a victim of age discrimination under such laws is more favorable as well as compared to the ADEA.

Proposed Federal Legislation to Provide Greater Legal Protections for Older Workers

A bill passed by the U.S. House of Representatives in January 2020 seeks to change the heightened standard of proof that older workers have to meet to demonstrate age discrimination under federal law.  The bill, Protecting Older Workers Against Discrimination Act, would enable  older workers to prove their age discrimination claims by showing that age was a motivating factor. However, this legislation has not been taken up by the Senate due to the opposition to it.

There are a lot of different facets regarding the above issues. It is best to seek the advice of an experienced employment attorney if you are faced with or have concerns about any of these issues.

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