Before a recent deposition, I asked a defense employment attorney to step into the hallway to see if her client, who was about to be deposed, wanted to discuss settlement before we started. In response, this employment attorney threatened me and my client with sanctions if we continued to pursue the claim. I responded that in my 15 years of practice that I found that absent extremely egregious conduct, it was rare to get sanctions and that we had a very meritorious case. When I then started to ask how many sanction motions that she had won and how many years she had been practicing, in order to establish a range, the defense employment attorney got upset and accused me of age discrimination, as well as some other choice words. I opted to simply walk away and start the deposition.
But, age discrimination?!? I was shocked that an employment discrimination attorney, even from a defense employment lawyer, would think that there is such a thing as reverse age discrimination (let alone that it would apply outside an employment setting). So I pulled out a recent U.S. Equal Employment Opportunity Commission position letter on the Age Discrimination in Employment Act (“ADEA”). It provided:
The ADEA, as amended, prohibits age discrimination in employment, but limits coverage “to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a). Moreover, the ADEA only prohibits discrimination that disfavors older workers as compared to younger workers, even when all of the workers are at least 40 years old. General Dynamics Land Sys. v. Cline, 540 U.S. 581, 591 (2004). When interpreting the ADEA in this manner, the Supreme Court observed that, “[i]f Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under age 40.” Therefore, the ADEA would not prohibit minimum age requirements even if the minimum age requirement were set at over age 40, because the minimum age requirement would benefit the relatively older workers and only harm the relatively younger workers.
So there you have it. It is legal to discriminate against the young and have minimum age requirements. Heck, the freaking United States Constitution expressly authorizes minimum age limits – you must be 35years old to be elected President or Vice President, 30 to be a Senator, or 25 to be a Representative.
This is different from the other Title VII of the Civil Rights Act of 1964, which prohibits discrimination against any race, any religion, any national origin, and both genders equally; one cannot discriminate in favor of one over another. While claims by White employees or male employees are commonly referred to as reverse discrimination, Title VII does not distinguish between races, religions, national origins, or genders. Employers cannot hire only African American employees to the exclusion of White employees; or female workers to the exclusion of male workers.
However, there is one other area were reverse discrimination is allowed. Under the Americans with Disabilities Act (“ADA”), employers can discriminate in favor of disabled individuals and against individuals without a disability. It provides: “Nothing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.” 42 U.S.C. § 12201(g). Likewise, the 2008 House Judiciary Committee Report provides that this provision “prohibits reverse discrimination claims by disallowing claims based on the lack of disability.” Additionally, the ADA does not affect “laws that may require the affirmative recruitment or hiring of individuals with disabilities, or any voluntary affirmative action employers may undertake on behalf of individuals with disabilities.” Appendix to 29 C.F.R. § 1630.4.
So in the end, feel free to compliment employees on how young they look (as long as you don’t only give those compliments to women, or for that matter, men).
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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