Reforming the Age Discrimination in Employment Act: Proposals and Prospects

This article argues that the Age Discrimination in Employment Act (ADEA) should be amended to provide it with the same procedural and substantive strengths Congress has provided Title VII. The article highlights four gaps between the ADEA and Title VII: damage remedies; class actions; defenses to disparate impact actions; and causation standards for disparate treatment actions. The article also advocates other modifications of the ADEA to encourage the employment of older Americans. The article recommends compelling employers to retain productive incumbent older workers, regardless of the compensation previously promised experienced workers. It also recommends considering allowing employers to hire older workers for a probationary period during which the employers would be insulated from age discrimination claims from the workers. Doing so would encourage employers to gain first-hand knowledge of particular workers who may be hoping to start new careers or to transition to retirement by holding jobs of reduced responsibility