When the Age Discrimination in Employment Act was first proposed in the late 1960s, supporters of the bill presented evidence that employers were routinely discriminating against older workers. At that time, older workers were defined as those over 40. In the more than 40 years since ADEA was adopted, have these assumptions changed?

Americans' lifespans are longer, and many jobs' retirement ages are later than was the case in the 1960s and 70s. For many jobs, increased academic or vocational training and experience requirements mean that employees are entering the workforce and achieving a level of competence at a later age than had been the case in the past.

In our experience, the EEOC and even many plaintiffs' lawyers are not enthusiastic about pursuing age discrimination claims brought by persons in their early 40s. Would a 42-year old employee who is replaced by a 35-year old be able to credibly contend that the age difference contributed to this decision? Given the fact that a 40-year old employee may have more than 30 years of productive work remaining, why would an employer seek to displace that person due to concerns over aging?

This change in perceptions may not hold true for all industries. For certain retail or other businesses that strive to portray a youth-based image, employees in their 40s may not be viewed as consistent with these efforts. Congress is unlikely to amend ADEA to raise the bottom end of the protected category. When making decisions that affect employees in their 40s, employers should not forget that age bias, even if more unusual, can still form the basis for a discrimination claim.