You Are Not Quite as Old as You Think: Making the Case for Reverse Age Discrimination under the ADEA

Abstract

While discrimination against employees at least forty years old is prohibited by the ADEA, all employees at least forty years old are not equally protected. An employer is permitted to engage in reverse discrimination. Sometimes, employers inadvertently engage in reverse age discrimination in trying to prevent liability from age discrimination. Reverse age discrimination occurs when an employer favors a relatively older employee over a relatively younger employee in an employment decision. The key question in the reverse discrimination debate is whether the ADEA only prohibits discrimination against those individuals at least forty years old who are also disfavored in relation to younger workers or if it unequivocally prohibits discrimination based on age against any individual over the age of forty. The courts have attempted to avoid the plain meaning of the ADEA by terming claims by individuals at least forty years old who cannot show that they were disfavored in relation to a younger worker as reverse age discrimination. In 2004, the United States Supreme Court held in General Dynamics Land Systems v. Cline that the ADEA does not prohibit favoring the old over the young. This holding allows employers to treat older people in the protected class differently than younger people in the protected class even though the Supreme Court has refused to allow different treatment of employees within the protected class on other occasions. The expression "reverse age discrimination" is a misnomer. The fact that some members within the protected class were beneficiaries of the discriminatory action does not somehow suspend the language of the ADEA. If employees are at least forty years old, they are within the protected class. An employer's decision to treat them worse than relatively older employees because of the employees' ages violates the ADEA.