The ADEA and related laws are designed to prevent discrimination against people over 40, not to provide special protections to people as they age. The problem these laws were designed to correct was a problem of exclusion, rooted in stigma, stereotypes, and economic incentives to exclude more expensive workers. Studies prior to the enactment of the laws suggested that older workers who lost their jobs were less likely to be reemployed than younger workers and that durations of unemployment were longer (Miller, 1966). Explicit employment rules mandated retirement at particular ages or prevented hiring of workers over an established age. A review of the literature exploring the reasons for exclusion may be found in Neumark (2001). The age discrimination laws created no rights to training, job redesign, accommodation, or reassignment for aging workers with specific needs.

The extent to which these laws may or may not assist aging employees in prolonging their working lives is not well studied. One review of the literature analyzing the effectiveness of the ADEA suggests that age discrimination laws may marginally increase employment rates for workers over 60, but that there is little evidence of a positive effect on hiring. The increased employment rate appears to be likely due to a reduction in retirement, resulting in a net increase in employment (Neumark, 2001).

Age discrimination claims filed under the ADEA with the U.S. Equal Employment Opportunity Commission (EEOC) grew 34 percent between 1989 and 1993 and nearly 200 percent over the 1980 to 1984 period (Jolls, 1996; Patel and Kleiner, 1994). These claims accounted for approximately 25 percent of the caseload of the EEOC from 1984 to 1988, peaked at approximately 27 percent in 1992, declined somewhat during the 1990s to a low of 18.3 percent in 1999, and rose again to 23.6 percent in 2002. The absolute numbers of claims has also increased, so that the total number of age-related claims filed reached its highest level of 19,921 in 2002 (EEOC, 2003). The majority of these cases involve claims of job loss, often involving group layoffs, brought by people not protected by seniority systems.

Not all of these claims of discrimination ultimately succeed, however. To qualify for protection, workers must be able to demonstrate that they are as qualified for employment (in every respect) as a younger worker who is treated more beneficially. The worker must be able to show that direct age discrimination—not longevity or lack of skills or health impairment—was a factor in the adverse employment decision that she or he is challenging (Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 [2000]). Employers can defend these actions by showing that the decision was based on any factor other than age; that relative youth was a bona fide occupational qualification for the job; or that the older individual was unable to meet the demands of the job.

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