Strengthen Age Discrimination Protections to Help Confront the Challenge of Population Aging

A policy imperative in light of population aging in the United States is to increase employment among older workers. However, age discrimination, especially in hiring, can impede efforts to encourage older people to work longer. This commentary reviews evidence on age discrimination and laws prohibiting age discrimination, and discusses recent court rulings that affect the strength of these laws. Based on this review, the commentary proposes a number of policy changes to reduce age discrimination in hiring, including: increasing damages under the Age Discrimination in Employment Act (ADEA) to match the larger damages that some states allow; amending the ADEA to clarify that claims based on statistical differences in the effects of employer policies ("disparate impact claims") are allowed for hiring discrimination, and that the standard for establishing discrimination is not that age was the determining factor in creating the disparity (the "but for" age criterion), rather that it was simply a contributing factor; amending the ADEA to allow intersectional claims regarding age and other group membership - especially regarding discrimination against older women; extending affirmative action for federal contractors to older workers; and considering strengthening the Americans with Disabilities Act (ADA).