VOLUME II Chapter 18 Age Discrimination in Employment Act

• Jurisdiction: South Carolina

Chapter 18 Age Discrimination in Employment Act¹Updated by: Janet E. RhodesBurnette Shutt & McDaniel, PA

I. Introduction

The Age Discrimination in Employment Act of 1967, as amended ("ADEA"),²"broadly prohibits arbitrary discrimination in the workplace based on age."³ The ADEA was enacted to protect older workers from the "inaccurate and stigmatizing stereotypes" that their competence and productivity automatically decline with old age.⁴ Accordingly, "the ADEA commands that 'employers are to evaluate [older] employees . . . on their merits and not their age.'"⁵

The ADEA has been labeled a "hybrid" statute by the United States Supreme Court because its substantive, anti-discrimination provisions are founded upon Title VII of the Civil Rights Act of 1964, and its procedural and remedial provisions are modeled after the Fair Labor Standards Act.⁶ The unusual characteristics of the ADEA exist because Congress originally designated the Secretary of Labor to enforce the Act. Although Congress later transferred enforcement of the ADEA to the Equal Employment Opportunity Commission ("EEOC"), which also enforces Title VII, the procedural requirements of the ADEA were not changed until the early 1990s. In the Civil Rights Act of 1991, Congress attempted to cure some of the confusion among employment discrimination claimants by making the filing procedures and time limitations of the ADEA closely parallel those of Title VII. Nevertheless, as described below, some significant differences between the ADEA and Title VII remain.

The ADEA makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation terms, conditions, or privileges of employment, because of such individual's age."⁷ The Act also prohibits age discrimination by employment agencies and labor organizations.⁸ Further, the Act provides that it is an unlawful employment practice to retaliate against an employee because he or she has opposed a discriminatory act or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA]."⁹

The South Carolina Human Affairs Law contains analogous provisions prohibiting age discrimination in employment.¹⁰

II. Coverage

The protected age group under the ADEA is individuals who are 40 years old or older.¹¹ The Act originally limited its protections to individuals between 40 and 65 years of age,¹² but was amended in 1978 to extend the upper range to 70 years of age,¹³ and in 1986 to remove the upper age limit altogether.¹⁴ The ADEA does not provide a remedy for claims of "reverse" age discrimination by younger employees, even those who fall within the age-protected category of 40 years old and older.¹⁵ Like the ADEA, the South Carolina statute protects persons who are "at least forty years [old]."¹⁶

The ADEA applies to any private employer engaged in an industry affecting commerce who employs 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.¹⁷ This provision differs from the reach of Title VII, which applies to employers who have 15 or more employees.¹⁸

The South Carolina Human Affairs Law, like Title VII, defines the term "employer'' as any person who has 15 or more employees.¹⁹ However, the South Carolina statute specifically provides that "[n]othing in this chapter may be construed to create a cause of action against a person not covered by the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section 621 et seq., if the cause of action arises from discrimination on the basis of age."²⁰ Accordingly, there is some uncertainty about whether employers with 15-19 employees would be subject to liability under the South Carolina Human Affairs Law for age discrimination, because such employers are not covered by the ADEA.

Although the ADEA specifically provides that the definition of "employer" includes "any agent of [an employer],"²¹ the Fourth Circuit has held that individual supervisors are not personally liable under the ADEA for discriminatory personnel actions.²² The Birkbeck court read Section 630(b)(1) "as an unremarkable expression of respondent superior-that discriminatory personnel actions taken by an employer's agent may create liability for the employer."²³

The text of the ADEA specifically provides that it applies to states, political subdivisions of states, and agencies or instrumentalities of state or local governments.²⁴ The United States Supreme Court has held that the ADEA was a valid exercise of Congress's power under the Commerce Clause and, therefore, does not violate the Tenth Amendment to the United States Constitution.²⁵ In Kimel v. Florida Board of Regents,²⁶ however, the United States Supreme Court held that the ADEA was not a valid abrogation of states' sovereign immunity under the Eleventh Amendment because Congress did not have such authority under Section 5 of the Fourteenth Amendment to subject states to private lawsuits for age discrimination.²⁷ The Kimel Court determined that "the ADEA is not 'appropriate legislation'" pursuant to Section 5 largely because "age is not a suspect classification under the Equal Protection Clause."²⁸

In light of Kimel, enforcement of the ADEA for state employees is now generally limited to enforcement actions by EEOC, because the Eleventh Amendment to the United States Constitution does not limit the legal actions of the federal government.

Although the ADEA expressly provides for concurrent jurisdiction of civil actions in "any Federal or State court of competent jurisdiction,"²⁹ age discrimination plaintiffs cannot circumvent the Eleventh Amendment by suing a state in state court under the statute. In Alden v. Maine,³⁰ the Supreme Court held that Congress does not have the power under the Article I of the Constitution "to subject nonconsenting states to private suits for damages in state courts."³¹

Accordingly, employees of states or state agencies are now generally relegated to state laws to vindicate any individual claims of age discrimination in employment.³² South Carolina's Human Affairs Law expressly applies to "the State and any of its agencies and departments or local subdivisions of state agencies and departments."³³ The procedures for pursuing a complaint of discrimination by a "state agency or department or local subdivision of a state agency or department" are set forth in S.C. Code Ann. § 1-13-90(c), and are significantly different that those that apply to private employers or local governmental employers, as set forth in S.C. Code Ann. § 1-13-90(d).

The ADEA's definition of "employer" specifically excludes the federal government and corporations wholly owned by the United States.³⁴ Instead, the Act contains its own separate provisions for age discrimination in federal government employment.³⁵

The Fourth Circuit has held that the ADEA is intended to be the exclusive remedy for age discrimination; thus, age-discrimination claims by public employees under 42 U.S.C. § 1983 are precluded.³⁶ The Zombro court reasoned that allowing a public employee to bring suit under Section 1983 for age discrimination would thwart the ADEA's administrative enforcement provisions through EEOC.³⁷

In EEOC v. Seafarers International Union,³⁸ the Fourth Circuit held that an EEOC regulation extending the ADEA to apprenticeship programs was a permissible implementation of the Commission's power under the ADEA.

A. Exempt Employees

There are several exceptions to the general rule that all employees 40 years of age or older are protected by the ADEA. The Act specifically excludes from the definition of "employee" any person elected to state or local public office, any person chosen by the elected official to be on his or her personal staff, and appointees at the policy-making level or immediate advisers of the elected official with respect to the constitutional or legal powers of office.³⁹

In addition, the Act provides that persons who are employed in bona fide executive or high policy-making positions in the two years immediately prior to retirement may be subject to compulsory retirement at age 65 if they are entitled to annual retirement benefits of at least $44,000.⁴⁰

With respect to firefighters and law enforcement officers, the ADEA specifically allows states or political subdivisions of the states to establish hiring ages and retirement ages under certain circumstances.⁴¹

The ADEA previously allowed institutions of higher learning to force tenured professors into compulsory retirement at age 70;⁴² however, that provision was repealed effective December 31, 1993.⁴³

Courts have also held that independent contractors are not considered covered employees under the Act, nor are partners in a partnership.⁴⁴

In Reyes-Gaona v. North Carolina Growers Association,⁴⁵the Fourth Circuit held that a foreign national who is not authorized to work in the United States is not entitled to protection of the ADEA. Similarly, in Chaudhry v. Mobil Oil Corp.⁴⁶the court held that a foreign national who was not qualified for employment in the United States is ineligible for protection under Title VII or the ADEA.

B. Exempt Employers

Employers with fewer than 20 employees are not covered under the ADEA.⁴⁷Moreover, Indian Tribes are exempt from coverage under the Act.⁴⁸ In addition, the ADEA does not apply to uniformed personnel in the United States Armed Services.⁴⁹ Unlike Title VII,⁵⁰ however, the ADEA contains no provision exempting bona fide private membership clubs from coverage as an "employer."

III. Procedure for Filing an ADEA Claim

The procedure for filing a claim under the ADEA is similar to that for claims under Title VII. Before a claimant may file a lawsuit for age discrimination under the ADEA, he or she must first pursue his or her administrative remedies by filing a charge of discrimination with EEOC or with a state or local...