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  4. Written Testimony of Laurie McCann, Senior Attorney, AARP Foundation

Written Testimony of Laurie McCann, Senior Attorney, AARP Foundation

April 28, 2021

Chair Burrows and Commissioners Samuels, Dhillon, Sonderling, and Lucas, thank you for organizing today’s hearing to discuss the civil rights implications of the Covid-19 pandemic and for inviting AARP to testify today. On behalf of our nearly 38 million members, and all workers age 40 and older, AARP appreciates this opportunity to share our views and expertise at today’s Commission meeting, and to urge the Commission to take action to improve the enforcement of the ADEA in light of the devastating impact of the pandemic on older workers.

Introduction

One of the most notable trends coming out of the Covid-19 pandemic is the loss of older workers. The labor force participation rate—the proportion of the population working or seeking work—for Americans age 55 and older has fallen from 40.3% in February of 2020 to 38.2% this March—representing a loss of 1.44 million people from the labor force. And until very recently, this decline in older workers’ labor force participation had shown no rebound from last spring. The pandemic, which places older workers at greater risk of more serious illness than other age groups,[1] and the recession that has accompanied it, have dealt devastating blows to the job prospects and future retirement security of older workers. [2]  Older workers, particularly older women workers and older Black workers, are underrepresented in safe occupations and overrepresented in many frontline and sidelined occupations – those that expose workers to risk of infection and those that are vulnerable to downsizing on account of the pandemic.[3] Moreover, the pandemic has exacerbated age discrimination causing older workers to become even more vulnerable to economic peril.

Economic Impact of the Covid-19 Pandemic on Older Workers

While older workers typically bear the brunt of economic downturns, the recession resulting from the Covid-19 pandemic has hit older individuals – particularly older women – particularly hard. The magnitude of the Covid-19 recession combined with the virus’ particularly deadly impact on older persons explains this greater adverse impact.[4]

The average duration of unemployment for older workers is much longer than that experienced by younger age groups. In March, over half of jobseekers ages 55 and older (54.1 percent) were long-term unemployed (out of work for more than 27 weeks and still looking for employment) compared with 40.8 percent of jobseekers ages 16 to 54.[5] Among the unemployed respondents to a recent AARP survey of adults age 40-65, more than half were worried that their age would limit job-finding opportunities.[6]

Many older workers never fully recover from long-term unemployment. A report from the Schwartz Center for Economic Policy Analysis revealed that increased job loss and a slower recovery for older workers raises the risk of early and involuntary retirement, as many displaced older workers lose hope of finding work any time soon.[7] During the pandemic, older workers have exited the labor force at twice the rate they did during the Great Recession of 2007 to 2009.[8] That trend in turn leads to more drastic downward economic mobility in retirement, including, in many instances, households falling from the middle class during their working careers to poverty or near-poverty in retirement.[9]

According to AARP employment data, women over the age of 55 face a particularly serious threat to their careers and earning power amid the financial and labor market turmoil caused by Covid-19. For the past three months, labor force participation rates for women 55+ were the lowest since the pandemic began (around 33 percent), suggesting an even more long-term impact on older women.[10]

The Pandemic Has Exacerbated Age Discrimination

For older job seekers and workers, age discrimination is the biggest barrier to both getting employed and staying employed. Whether due to the high rate of involuntary separations older workers face, or because of the various ways employers reject or discourage their job applications, age discrimination impedes older workers’ ability to become and remain employed.

Certainly, the Age Discrimination in Employment Act (ADEA), which has been in effect for over 50 years, has significantly improved the employment landscape for older workers. And, Congress has amended the law several times to strengthen the Act’s coverage and protections. Upper age limits on coverage were eliminated – banning mandatory retirement for almost all workers – discrimination in employee benefits was prohibited with narrow exceptions, and significant protections for older workers who are laid off and asked to waive their rights and claims under the ADEA were added.

However, age discrimination in the workplace is still disturbingly pervasive. According to forthcoming AARP survey research completed in December 2020, 78 percent of older workers ages 40 to 65 report having witnessed or experienced age discrimination on the job. Seventy-six percent of women, 78 percent of African American workers, and 82 percent of Hispanic/Latino workers age 40 and older say they have seen or experienced age discrimination in the workplace.[11]

Recent research has confirmed what has been long suspected: age discrimination becomes more pervasive during recessions.[12] Thus, it is not surprising, that like throwing jet fuel on a fire, the Covid-19 pandemic has amplified age discrimination as an obstacle to older workers’ efforts to find and keep jobs. Many of the recalcitrant stereotypes about older workers combine to make it even more difficult for them to remain in or regain employment during the COVID-19 pandemic. Outdated stereotypes of older workers as less productive, more expensive, and unable to master new skills and technologies needed to work remotely all limit employment opportunities for older workers.

As employers begin to make plans to bring their employees back to the workplace, the fact that older individuals are more susceptible to serious illness and death if they contract the virus may lead employers to try to limit their potential liability to unsafe workplace claims and avoid increased healthcare costs by eliminating their current older employees and/or refusing to hire older applicants. Unlike the Americans with Disabilities Act (ADA), the ADEA does not require employers to provide older workers with reasonable accommodations.

What Employers Can Do to Mitigate the Impact of the Pandemic on Older Workers[13]

The coronavirus pandemic has created tremendous upheaval in the workforce, and many employers are struggling to keep their businesses running. AARP believes that employees of all ages bring strengths that organizations can leverage as they navigate the crisis, both now and in the long term. First and foremost during this pandemic, as encouraged by this agency, employers should offer maximum flexibility for its older workers.[14] To leverage older workers’ strengths, employers should also:

Make use of age diversity: Research shows that mixed-age teams out-perform less age diverse teams on creative and complex decision-making tasks — which are particularly important in times of crisis. Where possible, develop and preserve mixed-age teams and consider connecting younger workers with older mentors who have likely weathered storms in the past and can provide emotional support.

Assess skills, not age: If your organization is forced to make employment cuts as a result of COVID-19, remember to assess current employees by their skills, not age or perceived retirement timeframe. Don’t accept outdated myths about older workers, including that they are “bad” at technology and unwilling to learn new skills. Forthcoming AARP survey research showed that 67 percent of older workers are interested in additional job skills training and 94 percent would learn new skills if an employer requested it of them. Two-thirds had taken job-related skills training or education in the past two years.

Stay alert for unconscious bias: In stressful times, our brains tend to rely on “accepted wisdom” or stereotypical thinking, but individual employees invariably defy stereotypes. Be mindful not to make assumptions about employees’ response to COVID-19 based on age or any other aspect of their identity.

Consider life stages: Don’t assume anything about your employees based on age; life stage is a far more accurate predictor of employee needs than chronological age. Different individuals have different challenges and responsibilities regardless of age  — for example, 25% of caregivers are  millennials. Engage with each of your employees, ask them what they need and practice active listening — don’t jump to conclusions based on ageist assumptions.

Acknowledge impacts to retirement savings: The economic downturn will likely reduce retirement savings significantly, and these losses tend to hit mid- and late-career workers harder than younger workers because they have less time to build back a depleted nest egg. Provide financial counseling and support where possible — to all workers — to help them navigate the best path forward.

Support the caregivers in your workforce: Over 60% of the nation’s 40 million caregivers are employed full-time. In light of COVID-19, this number is bound to increase. Highlight your paid leave benefits and encourage employees to use these benefits during this time. Review our Caregiving, COVID-19, and the Workplace Tip Sheet for more guidance.[15]

Consider state resources to avoid layoffs: Check your state’s Department of Labor, Economic Development Council, Small Business Development Center and Chambers of Commerce for financial relief and unemployment resources.

Gradual return to work: While states and local governments may decide to reopen doors, many individuals, including older workers, may be wary of possible exposure to Covid-19. Consider staggering returns across the workforce to help protect everyone’s health.

Employers should also:

  • Update the work from home status of employees every two weeks and keep their workforce informed with a tentative reentry date. Consult the official CDC website and safety standards to inform decisions.
  • Send out a quick employee impact survey. Ask employees if they know about and are using the leave, remote work and/or flexible scheduling opportunities. Ask what else can be done to make these key supports easier to use.
  • Encourage caregivers in your workplace to use their paid leave benefits. If affordable, consider extending these benefits to everyone. Encourage your outsourcing partners to do the same.
  • Commit to personal safety in the workplace and follow safety guidelines as outlined by the CDC Mitigation Framework. Require remote work for employees until the safety situation improves. Coordinate with your people managers and IT department to facilitate remote work. Live documentation systems such as Google Docs, Slack and Microsoft Teams help employees stay connected in real time and streamline workflows.
  • File an unemployment claim for employees if your organization is forced to make workforce cuts. Allowing your former employees to receive unemployment benefits can positively impact your brand in the long run when you reinstate hiring activities.

The EEOC Should Strengthen ADEA Protections and Enforcement

The Covid-19 pandemic and accompanying recession have laid bare the need for Congress to strengthen the ADEA’s protections and for the EEOC to similarly revitalize the Act’s substantive regulations. The EEOC should also more vigorously enforce the ADEA in light of the precarious position of older workers in the wake of the pandemic.

When enacting the ADEA, Congress borrowed the statutory language used in Title VII of the Civil Rights Act of 1964 to prohibit other forms of discrimination and imported it in haec verba into the ADEA.[16] Doing so should have ensured that age discrimination victims would enjoy rights comparable to other groups, and for the ADEA’s first thirty years or so, it mostly did. Since then, however, that has not been the case.[17] Instead, the Supreme Court and other federal courts have emphasized the differences between the two statutes and used those differences to diminish the ADEA’s protections and erect barriers to age discrimination suits. Some misguided court decisions and shortcomings of the ADEA can only be fixed by Congress. (e.g., a right to monetary relief for the injury of unequal treatment based on age, a remedy available under virtually all other federal civil rights laws.) Nevertheless, there is much the EEOC can do within its existing authority to update and strengthen substantive policies and to bolster its enforcement activities under the ADEA.

Needed ADEA Policy Improvements

Strengthen regulations on “help wanted notices and advertisements” and “employment applications” and update regulations to address changing nature of recruiting and hiring practices

Too many employers persist in using age-based qualifications in their job postings, or use age-related inquiries and screening procedures in their job application process, especially online. Originally drafted by the Labor Department in 1968, the EEOC’s current regulations[18] contain weak and internally contradictory language that does little to deter improper employer recruiting and hiring behavior or protect the rights of older workers. The regulations expressly disclaim that asking for an applicant’s age or date of birth, in and of itself, constitutes unlawful behavior, stating only that such requests will be “closely scrutinized.” Whether this ever happens – and how, when, and by whom – is uncertain, but appears to be rare. Moreover, the regulations state that job postings that limit applicants to college students, recent college graduates, and the like do violate the law, yet they are silent on other wording or practices that amount to the same thing. Moreover, the EEOC has been less than energetic in challenging employers who use the phrasing and engage in the conduct the agency’s rules say are unlawful. 

An issue of increasing importance is the application of the ADEA to hiring on social media and other digital platforms. In just a few years, pathways for securing employment have drastically changed. Scouring want-ads and sending out paper resumes is a thing of the past,  replaced by social media job notices and online applications. Regrettably, compliance with age discrimination and other civil rights laws badly trails the growing dominance of job search and recruitment by social media platforms.

In addition, employers are increasingly using tools powered by artificial intelligence throughout the hiring process to increase efficiency, improve the applicant experience, and achieve a better quality of new hires. But doing so can create and perpetuate biases that disadvantage older workers, people with disabilities, and groups that have historically faced discrimination. These tools have produced harmful results when they have not been adequately tested and supervised. Laws meant to prevent or remedy employment discrimination have not yet been updated to address these concerns

AARP urges the EEOC to more vigorously enforce existing prohibitions and make it a top priority to revise its regulations to:

  • make age-related inquiries and specifications presumptively unlawful;
  • reinforce that practices like maximum experience requirements and requirements for applicants to be affiliated with a university are age-related;
  • bar requests for date of birth, graduation dates, or similar information unless age is a bona fide occupational qualification;
  • prohibit practices of online job sites and others that require entry of age to complete an application, use drop-down menus that contain age-based cut-off dates, or utilize selection criteria or algorithms that have the effect of screening out older applicants;
  • Explore means to ensure compliance with the ADEA by social media and other digital platforms as well as artificial intelligence processes.

Finally, these regulations should be issued as substantive “legislative” regulations, not as interpretative regulations.[19]

Strengthen Guidance on Age-Based Harassment

In 2017, this Commission sought public input on proposed enforcement guidance on harassment, based on the findings and report of its Select Task Force on Harassment.[20] AARP testified before the Task Force,[21] and we submitted comments on the proposed guidance.[22] Final guidance has not yet been issued, and AARP urges the Commission to heed the concerns expressed in our comments on the guidance and its treatment of age-based harassment. In particular, it is critical for the guidance to make clear that no additional showing of discriminatory animus should be required in order for a worker to demonstrate age-based harassment. Remarks that are dismissive and derogatory can be based on negative, age-based stereotypes that set older workers apart, without being based on or evincing animus. Yet, they still have the effect of creating a discriminatory environment and denying equal opportunity in a workplace for older workers. The EEOC’s final guidance should reflect this and include appropriate examples.

Issue Clarifications to Other Guidance

There are some ADEA cases in which courts have reached results that are contrary to what AARP believes is required by the law and the EEOC’s regulations. For instance, some courts have ruled that job applicants may not challenge age discrimination in hiring under the ADEA based on disparate impact, when there is no such distinction in the law or regulations.[23] Other courts have ruled that compensatory and punitive damages are not available for retaliation in violation of the ADEA,[24] despite the EEOC’s longstanding guidance that clearly states the opposite.[25] There have also been decisions in which courts have misconstrued the “but-for” standard enunciated in Gross v. FBL Fin. Services Inc., 557 U.S. 167 (2009)[26] and others that have placed unwarranted limits on cases brought by public employees.

There is also a disturbing trend where some courts are misinterpreting the term “eligibility factors” in the EEOC’s regulations concerning the waiver protections of the Older Workers Benefit Protection Act (OWBPA) based on an “example” in those regulations that is allowing employers to evade the strict requirements in that act meant to insure that waivers of ADEA rights are “knowing and voluntary.”[27] However, the EEOC stated that “This example is not presented as a prototype notification agreement that automatically will comply with the ADEA.” 29 C.F.R. § 1625.22(f)(4)(B)(vii). In subsequent policy guidance, the EEOC provides additional support for the fact that its example has questionable authoritative significance by acknowledging that some courts that have “interpret[ed] the term ‘eligibility factors’ to mean the criteria, such as job performance, experience, or seniority, an employer relied on in deciding who to terminate.” Understanding Waivers of Discrimination Claims in Employee Severance Agreements (2009), https://www.eeoc.gov/policy/docs/qanda_severanceagreements.html/ (citing Pagilio v. Guidant Corp., 483 F. Supp. 2d 847 (D. Minn. 2007)). In short, the example in the EEOC regulations is inconsistent at best, and at worst, clashes with the OWBPA’s legislative record that is replete with admonitions about older workers’ need for information prior to waiving their rights and claims under the ADEA. See, e.g. S. Rep. No. 101- 263, at 32 (1990) (explaining that in group termination programs employees “have little or no basis to suspect that action is being taken based on their individual characteristics” and therefore, “the need for adequate information and access to advice before waivers are signed is especially acute.”).

AARP urges the EEOC to clear up some of these problems by making the following straightforward changes to relevant regulations/guidance in order to make the Commission’s position absolutely clear to the courts and provide stronger protection against age discrimination:

  • Add a definition of “individuals” to 29 C.F.R. §1625.1 that includes both applicants and employees, so that it is abundantly clear that applicants may bring disparate impact claims to challenge discriminatory hiring policies and practices;
  • Clarify that, despite Gross and Nassar[28]:
    • “But-for” does not mean “sole cause” – discrimination need only be “a” but-for cause, not “the” but-for cause;[29]
    • Cases involving mixed/multiple motives under the ADEA remain cognizable even if a but-for standard is applied;[30]
    • Cases involving intersectional discrimination such as sex and age discrimination against older women remain cognizable (Gross does not demand a single basis);[31] and
    • Federal sector employees can still proceed under the pre-Gross, burden-shifting framework for mixed motive claims.[32]
  • Regarding public employees under the ADEA:
    • Federal sector employees may assert claims based on a disparate impact theory of liability;[33] and
    • A cause of action for injunctive relief exists under the ADEA against state employers.[34]
  • Regarding the OWBPA:
    • Clarify that the obligation to disclose “eligibilityfactors” requires employers seeking waivers of ADEA rights and claims to identify the factors relied on in selecting employees for termination (such as performance), as opposed to merely disclosing that all employees who were selected for layoff were eligible to receive severance benefits if they signed a waiver. At the very least, the EEOC should delete the “example” that is fueling the misinterpretation of this critical statutory requirement.

Policymakers should strengthen federal and state laws that protect against age discrimination and ensure victims have adequate remedies, including monetary damages. In AARP survey research conducted in December 2020, 76 percent of respondents strongly agreed that older Americans should be protected from age discrimination just like they are protected from discrimination on the basis of race, sex, national origin, or religion.

More Robust Enforcement of the ADEA

According to the EEOC General Counsel’s annual report for FY 2020, of the 93 merits suits filed last year, only seven ADEA cases (7.5 percent of the total) were brought.[35] While this is a significant improvement from 2016, when only 2.3 percent of the Commission’s merit cases were age cases, more needs to be done. AARP appreciates the EEOC’s work on the Texas Roadhouse, Darden and Ruby Tuesday cases, but the EEOC can and should do much more, particularly in light of an aging workforce. The following types of cases are particularly important to pursue.

The EEOC Should Step Up Enforcement of Its RFOA Regulations

Although the disparate impact theory is the most appropriate and effective means of challenging hiring discrimination, as mentioned above, defendant-employers have successfully mounted an offensive to convince the courts that job applicants may not bring disparate impact claims under the ADEA. The U.S. Supreme Court has denied cert petitions seeking to reverse two federal appellate decisions that held that only current employees and not job applicants may bring disparate impact cases under section 4(a)(2) of the ADEA.[36]

Older workers need the EEOC to step up and vigorously defend its own disparate impact/reasonable factor other than age (RFOA) regulations – to take a clear stand that thinly veiled efforts that have the effect of excluding older applicants from consideration or deterring them from applying are unlawful and cognizable under the ADEA. We need the EEOC to bring these cases, and to file amicus briefs in those brought by others. The law is evolving quickly on this issue, and the time to step up is right now.

Step Up Enforcement in High-Violation Industries

In 2016, the EEOC held meetings and a hearing on diversity, including age diversity, in the high-tech sector. As part of that hearing, AARP testified[37] that negative age-based stereotypes and discrimination in that sector are pervasive: the median age of employees at top tech firms is in the late 20s, and the predominant ethos is that “in the tech world, gray hair and experience are really overrated.”[38] Another witness at that hearing, Ben Jealous, who had been working on venture capital and diversity in Silicon Valley, called the age discrimination there “extreme and well-known.”[39] We also testified as to how technology firms that ignore the talents of older workers are doing themselves a disservice. Research conducted by AARP reported that very few firms (only 8%) include “age” in their diversity and inclusion policies,[40] despite the demonstrated value of multigenerational workforces. Age-discriminatory layoffs have also been a huge problem in the technology sector.[41]

Another sector in which ageism is widespread is the entertainment industry. The age+sex discrimination against older actresses appears to start as soon as their early 30s.[42] Age discrimination is not limited to those in front of the cameras, though. Despite a hard-won suit on behalf of older writers (brought by AARP),[43] “the employment rate of industry writers still declines sharply with age.”[44] And according to SAG-AFTRA, it is also prevalent in the hiring of film crews.[45]

AARP urges the EEOC to use all the tools at its disposal to initiate investigations and charges, to file amicus briefs, and to undertake proactive diversity & inclusion efforts to address age discrimination in industries where it is known to be prevalent.

Enforce EEOC Regulations and Guidance on Mandatory Retirement

The EEOC’s compliance manual and informal discussion letters have been consistent. An individual's title is not determinative of whether she or he is really a partner; agency investigators need to look beyond titles and apply six factors to determine if the worker is really an employee or if the exemption is warranted.

AARP is aware that, on more than one occasion, the EEOC has received recommendations to file suit challenging mandatory retirement practices by “Big 4” accounting firms, based on both directed investigations and individual complaints. Yet, in every instance, the EEOC has not taken action. In some cases, the so-called partners were bound by forced arbitration agreements and could not mount a legal challenge themselves; their only recourse rested with the EEOC taking action. As noted above, mandatory retirement not only hurts those employees directly affected, it also infects the entire workplace with age discrimination in hiring and promotions. It is not acceptable to ignore enforcement of a central tenet of the ADEA. Especially at a time when older workers need to work and are working longer – and many on both sides of the aisle encourage longer work lives – the EEOC needs to more actively enforce its own position.

Bring the Cases that Workers Cannot

There are several types of cases in which older workers cannot meaningfully vindicate their own rights, primarily because the lack of adequate damages makes it difficult to  attract private counsel. For example, the EEOC needs to take the lead and bring cases on behalf of state government workers. The EEOC also needs to be on the look-out for and bring cases involving age-based harassment, where the employee may not have experienced economic losses but endured discriminatory treatment all the same. Until we can fix shortcomings in the statute, the EEOC needs to assume a more proactive role in vindicating the rights of older workers who find they cannot bring cases themselves.

Conclusion

Thank you for the opportunity to testify today about the plight of older workers in the Covid-19 pandemic. We look forward to working with the Commission to ensure that the ADEA is vigorously and effectively enforced so that barriers to employment opportunities for older workers are removed.

 

 

[1] “Public-health officials have warned that the risk of severe illness from Covid-19 increases with age. Among those who contract the virus, the death rate for those age 50-64 is nearly nine times that of those age 30-39, according to the Centers for Disease Control and Prevention.” Amara Omeokwe, “Pandemic Accelerates Retirements, Threatening Economic Growth,” The Wall Street Journal, March 28, 2021 available at https://www.wsj.com/articles/pandemic-accelerates-retirements-threatening-economic-growth-11616940000     

[2] Research by the New School forecasts that the poverty rate in retirement among workers who are now age 50 to 60 will jump to 54 percent from 28 percent because of the impact of the pandemic. Mark Miller, “A Pandemic Problem for Older Workers: Will They Have to Retire Sooner,” The New York Times, June 26, 2020. https://www.nytimes.com/2020/06/26/business/retirement-coronavirus.html

[3] Aida Farmand and Teresa Ghilarducci. “Older Workers are Underrepresented in ‘Safe’ Jobs in the COVID-19 Recession,” American Society on Aging 2020 available at https://generations.asaging.org/covid-19-recession-older-workers-unemployment             

[4] Truc Thi Mai Bui, Patrick Button and Elycee C. Picciotti, “Early Evidence on the Impact of Covid 19 and the Recession on Older Workers,” National Bureau of Economic Research (June 2020), available at https://www.nber.org/system/files/working_papers/w27448/w27448.pdf         

[5] Jennifer Schramm, “March 2021 Employment Data Digest”, AARP Public Policy Institute https://www.aarp.org/ppi/info-2020/employment-data-digest.html        

[6] Rebecca, Perron, “Ageism Could Hurt Job Prospects, Say Job-Insecure Older Workers,” AARP Research (January 2021) https://www.aarp.org/research/topics/economics/info-2021/ageism-job-security-older-workers.html            

[7] Owen Davis, Bridget Fisher, Teresa Ghilarducci and Siavish Radpour, “A First in Nearly 50 Years, Older Workers Face Higher Unemployment Than Mid-Career Workers,” Schwartz Center for Economic Policy Analysis, Retirement Equity Lab (October 2020) available at https://www.economicpolicyresearch.org/images/Retirement_Project/status_of_older_workers_reports/Q3_2020_OWAG_V6.pdf. See also Jennifer Schramm, “Devastating Job Losses May Be Pushing Older Workers into Retirements,” June 8, 2020, available at https://blog.aarp.org/thinking-policy/job-losses-may-be-pushing-older-workers-into-retirement         

[8] Paula Span, “When Retirement Comes Too Early,” New York Times, August 28, 2020 (citing research by the New School’s Retirement Equity Lab), https://www.nytimes.com/2020/08/28/health/coronavirus-retirement-recession.html         

[9] Davis et al at n.7.

[10] Jennifer Schramm, “The Covid Pandemic Has Upended Labor Force Projections,” March 9, 2021, available at https://blog.aarp.org/thinking-policy/the-covid-pandemic-has-upended-labor-force-projections?cmp=SNO-FB-CPPI&socialid=4559274973         

[11] Id.

[12] Gordon B. Dahl and Matthew M. Knepper, “Age Discrimination Across the Business Cycle,” National Bureau of Economic Research (July 2020), available at https://www.nber.org/papers/w27581              

[13] https://www.aarp.org/content/dam/aarp/work/employers/2020/05/employer-covid-guide-final.pdf

[14] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws    

[15] https://www.aarp.org/work/employers/caregiving-resources/info-2020/caregiving--covid-19-and-the-workplace.html  

[16] See Lorillard v. Pons, 434 U.S. 575, 584 (1978).

[17] See Adam Cohen, “After 40 Years, Age Discrimination Still Gets Second-Class Treatment,” New York Times, Nov. 6, 2009, available at http://www.nytimes.com/2009/11/07/opinion/07sat4.html.

[18] 29 C.F.R. §§ 1625.4 & 1625.5.

[19] See generally, EEOC, What You Should Know about EEOC Regulations, Subregulatory Guidance and other Resource Documents (undated), at https://www1.eeoc.gov//eeoc/newsroom/wysk/regulations_guidance_resources.cfm?renderforprint=1.

[20] EEOC Office of Legal Counsel, Proposed Enforcement Guidance on Unlawful Harassment (posted Jan. 10, 2017), at https://www.regulations.gov/document?D=EEOC-2016-0009-0001.

[21] Age Harassment in the American Workplace and What the EEOC Can Do About It, Remarks of Dan Kohrman, AARP, to the EEOC Select Task Force on the Study of Harassment in the Workplace, Dec. 7, 2015, available at https://www.eeoc.gov/eeoc/task_force/harassment/12-7-15/kohrman.cfm [hereinafter AARP Harassment Testimony]. The facts of Taaffe v. Drake actually illustrate both this point and the challenges faced by state employees in being able to mount a case after Kimel. Taaffe v. Drake, No. 2:15-CV-2870, 2016 WL 1713550 (May 29, 2016, S.D. Ohio),

[22] Comments of AARP re: Proposed Enforcement Guidance on Unlawful Harassment (Mar, 21, 2017), available at https://www.regulations.gov/document?D=EEOC-2016-0009-0106.

[23] See Kleber v. CareFusion, Corp., 914 F.3d 480 (7th Cir. 2019) (en banc); Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc). But see Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d 1126 (N.D. Cal. 2017).

[24] Vaughan v. Anderson Reg'l Med. Ctr., 849 F.3d 588 (5th Cir. 2017).

[25] EEOC Enforcement Guidance on Retaliation and Related Issues, IV(B)(2), at 59-60 (Aug. 25, 2016), available at https://www.eeoc.gov/laws/guidance/upload/retaliation-guidance.pdf. This guidance supersedes prior 1998 guidance, but that earlier guidance took the same position on damages available under the ADEA for retaliation, EEOC Compliance Manual, Section 8, Retaliation 8-III(B)(1), at 29 (May 20, 1998), available at https://www.supremecourt.gov/opinions/URLs_Cited/OT2005/05-259/05-259.pdf.

[26] See, e.g., Pelcha v. MW Bancorp, Inc., 984 F.3d 1199, 1205 (6th Cir. 2021) (ADEA plaintiffs “must show that age was the reason why they were terminated, not that age was one of multiple reasons.”). Both AARP and the EEOC filed amicus briefs in support of rehearing in this case.

[27] See e.g., Raymond v. Spirit Aerosytems Holdings, Inc., No. 16-1282, 2018 WL 6602230, at *16 (D. Kan. Dec. 17, 2018); Behr v. AADG, Inc., No. 14-CV-3075, 2016 WL 4119692, at *13-14 (N.D. Iowa July 29, 2016) (relying on 29 C.F.R. § 1625.22(f)(4)(vii)(B) to conclude that the OWBPA requires disclosure of the criteria for eligibility for benefits, not the criteria used in deciding which employees would be terminated); Recchia v. Kellogg Co., 951 F. Supp.2d 676, 693 (D. N. J. 2013).

[28] Univ. of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338(2013).

[29] Accord, Burrage v. U.S., 571 U.S. 204 (2014).

[30] By now it should be clear that bringing claims on multiple bases is not prohibited by Gross’ but-for standard, United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (ruled employees can plead in the alternative), but this principle is still challenged. Also, this clarification is needed because sometimes the McDonnell Douglas proof framework is described such that once a legitimate nondiscriminatory reason is articulated by the employer, it seems as if the employee must disprove the legitimate nondiscriminatory reason, but that is not appropriate. The employee should need only to prove that age was a but-for cause, regardless of other motives.

[31] See e.g., Brief of the Equal Employment Opportunity Commission As Amicus Curiae in Support of Plaintiff-Appellant, filed Jan. 24 2012, in Robinson v. City of Phila. (3d Cir.) available at https://www.eeoc.gov/eeoc/litigation/briefs/robinson.txt.

[32] 29 U.S.C. § 633a(a) (All personnel actions … shall be made free from any discrimination based on age”); Alotta v. Dept. of Transportation, EEOC Appeal No. 0120093865 (June 17, 2011).

[33] Allard v. Holder, 840 F. Supp. 2d 269 (D.D.C. 2012); Allovio v. Holder, 923 F. Supp. 2d 151 (D.D.C. 2013) (ADEA federal sector provisions include no authorization for disparate impact claims).

[34] Contrary to Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), which addressed this question directly with regards to the ADA, the availability of injunctive relief for state employees under the ADEA was not directly addressed in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). The decision in Taaffe v. Drake, No. 2:15-CV-2870, 2016 WL 1713550 (April 29, 2016 S.D. Ohio), held that injunctive relief was available, but the number of such decisions is quite limited and clarification is needed.

[35] EEOC, Office of General Counsel: Fiscal Year 2020 Annual Report (2020), https://www.eeoc.gov/office-general-counsel-fiscal-year-2020-annual-report#_Toc64911132

[36] See Kleber and Villarreal supra n. 22.

[37] Innovation Opportunity: Examining Strategies to Promote Diverse and Inclusive Workplaces in the Tech Industry, Testimony of Laurie McCann, AARP, to the EEOC, May 18, 2016, available at https://www.eeoc.gov/eeoc/meetings/5-18-16/mccann.cfm

[38] A. Bryant, “Brian Halligan, Chief of HubSpot, on the Value of Naps,” N.Y. Times (Dec. 5, 2013), available at http://www.nytimes.com/2013/12/06/business/brian-halligan-chief-of-hubspot-on-the-value-of-naps.html?_r=0

[39] EEOC Meeting of May 18, 2016 - Promoting Diverse and Inclusive Workplaces in the Tech Sector, Transcript, at https://www.eeoc.gov/eeoc/meetings/5-18-16/transcript.cfm.

[40] Lori Trawinski, Disrupting Aging in the Workplace: Profiles in Intergenerational Diversity Leadership 3 (AARP Pub. Policy Inst., Oct. 2016), available at http://www.aarp.org/content/dam/aarp/ppi/2016-11/213719%20Disrupt%20Aging%20in%20the%20Workforce%20Report_FINAL_links.pdf (citing S. Snowden & P. Cheah, A Marketplace without Boundaries? Responding to Disruption 31, Fig 18, 18th Annual Global CEO Survey (PwC, 2015), available at https://www.pwc.com/gx/en/ceo-survey/2015/assets/pwc-18th-annual-global-ceo-survey-jan-2015.pdf).

[41] See e.g., M. Rogoway, Intel layoffs skew older, spotlighting plight of aging workers, Oregonlive/The Oregonian (June 4, 2016), available at

http://www.oregonlive.com/silicon-forest/index.ssf/2016/06/intel_layoffs_skew_older_spotl.html; C. Fleck, “IBM Halts Practice of Disclosing Ages of Fired Older Workers,” AARP Blog (May 12, 2014), at http://blog.aarp.org/2014/05/12/ibm-halts-practice-of-disclosing-fired-older-workers/.

[42] S. Mendelson, “At Age 32, Is Anne Hathaway Already Too Old To Be A Movie Star?” Forbes (Sept. 7, 2015), available at https://www.forbes.com/sites/scottmendelson/2015/09/07/on-anne-hathaway-and-the-jennifer-lawrence-problem/#16a22e8d1b59; J. Anglis, “Anne Hathaway & 6 Other Actresses Who Have Opened Up About Ageism In Hollywood,” Bustle (Sept. 5, 2015), available at https://www.bustle.com/articles/108650-anne-hathaway-6-other-actresses-who-have-opened-up-about-ageism-in-hollywood.

[43] B. Jones, Court Approves Settlement of Largest Age Discrimination Lawsuit in History (Apr. 13, 2012), available at

http://www.aarp.org/aarp-foundation/our-work/legal-advocacy/info-2012/television-writers-age-discrimination-litigation.html.

[44] Brief Of Screen Actors Guild-American Federation of Television And Radio Artists and Association of Talent Agents as Amici Curiae in Opposition to Plaintiff’s Motion for Preliminary Injunction at 3, filed in IMDb.com, Inc. v. Becerra, No. 3:16-cv-06535-VC (Feb. 16, 2017).

[45] Id.