There is substantial evidence that older workers tend to earn higher wages, and that the ADEA legitimizes this practice (Jolls, 1996). Not surprisingly, job loss leads to significant earnings losses for older workers (Chan and Stevens, 2001; Haider and Stephens, 2001). ADEA cases that do not involve mass layoffs are most likely to be filed by relatively privileged workers, predominantly white males from managerial, professional, or white-collar backgrounds in order to challenge discharges, layoffs, and involuntary retirement (Eglit, 1997). In general, litigation over discharges is successfully pursued predominantly by employees who have been relatively economically privileged (Summers, 1992; Neumark, 2001). Moreover, in the majority of employment discrimination cases filed, employees who do prevail are unlikely to regain employment. The persistent consistency of these litigation results suggests that the ADEA is not likely to be a useful tool for aging workers in nonmanagerial employment who are most likely to confront health and safety risks at work and who want to remain employed.
The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213 is, in contrast to the ADEA, specifically designed to provide special protection to workers who meet the Act’s definition of disability and who can achieve success at work if they can overcome stigma and prejudice or are provided “reasonable accommodation.” State laws generally provide equivalent protection. The ADA defines “disability” as:
a physical or mental impairment that substantially limits one or more major life activities of an individual, as, for example, walking, talking, seeing, hearing, or caring for oneself;
a record of such an impairment; or
being regarded as having such an impairment (42 U.S.C. § 12102).
Only the first part of this definition, covering individuals with current and actual impairments, has specific relevance to the requirement that employers provide a healthy and safe working environment for employees. On its face, the ADA gives heightened protection at work to individuals with chronic health conditions, including those caused or exacerbated by work. In order to qualify for accommodation, an individual must be able to prove that she or he has a qualifying disability but is able to perform the essential functions of the job with reasonable accommodation.
For those workers who qualify under the disability definition, the ADA’s definition of reasonable accommodation is quite broad and includes: