LEGAL Q&A | GET ANSWERS WHAT ARE SOME EXAMPLES OF AGE-BASED HARASSMENT? Age harassment involves unwelcome and offensive conduct in the workplace that is based on a person’s age (age 40 or older). The harasser can be a supervisor, a coworker or someone who does not work for the employer, such as a client or customer. Age harassment can include age-based jokes or comments, offensive cartoons, drawing, symbols or gestures, and other verbal and physical conduct based on an individual’s age. CAN I ASK APPLICANTS THEIR AGE? The Age Discrimination in Employment Act (ADEA) does not explicitly prohibit an employer from asking an applicant’s age or date of birth. However, such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, contrary to the purposes of the ADEA. If the information is needed for a lawful purpose, it can be obtained after the employee is hired. CAN I PLACE A JOB AD THAT REFERENCES AGE PREFERENCE? The ADEA generally makes it unlawful to include age preferences, limitations or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.
Federal Age-Discrimination Law Applies To All Public Employers, Regardless of Size On November 6, 2018, the Supreme Court of the United States unanimously ruled that the Age Discrimination in Employment Act of 1967 (ADEA) applies to all states and political subdivisions — regardless of their size. In its ruling of Mount Lemmon Fire District v. Guido, the Court reasoned that a 1974 amendment to the ADEA extended its reach to public-sector employers by adding state and local governments to the definition of “employer.” However, this extension to public-sector employers did not include the size requirement that applies to other covered employers under the ADEA — which is 20 or more employees. The ADEA states that “employers” may not discriminate against persons on the basis of age. The ADEA originally applied only to private employers, but in 1974, Congress amended the definition of “employer” to read as follows: The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees. . . . The term also means 1) any agent of such a person, and 2) a State or political subdivision of a State. . . . 29 U.S.C. §630(b). The central issue in Mount Lemmon Fire District v. Guido was whether the phrase “also means” in the definition clause added new categories of employers or merely clarified the employers identified in the first sentence of the clause. The Court agreed to hear this case due to a circuit conflict on this issue. The Court held that the definition of employer establishes “separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and states or political subdivisions with no attendant numerosity limitation.” This decision resolves the issue of whether small public-sector employers are required to comply with the ADEA. For the latest employment law updates, visit www.mbausa.org.
Tammy Lamary-Toman, JD, PHR, SHRM-CP is vice president and employment counsel for the Manufacturer & Business Association.
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JANUARY 2019 • mbabizmag.com