COVID-19 and Age Discrimination

During the pandemic, our family has been binge-watching Twin Peaks. Although the show, itself, is iconic, it’s the music, written by Angelo Badalamenti, that drew my attention.

Badalamenti was trained as a classical musician. He studied at the famed Eastman School of Music and Manhattan School of Music. Although Badalamenti also studied piano and French horn, he settled on composition as his main musical interest.

Despite Badalamenti’s impressive musical training and diverse interests, he started his career as a public school music teacher in Brooklyn. Usually using a pseudonym, Badalamenti was a songwriter for numerous singers, including Shirley Bassey and Mel Tillis. Still, Badalamenti was largely unknown when at age 48, David Lynch hired him to write the soundtrack for Blue Velvet.

Badalamenti was 52 when he wrote the legendary Twin Peaks soundtrack, which earned him both Emmy and Grammy nominations. At age 70, he received a Lifetime Achievement Award at the World Soundtrack Awards. And at age 73, he received the Henry Mancini Award from ASCAP. Badalamenti continues to compose music into his 80s, including his work for the third season of Twin Peaks.

Badalamenti didn’t become famous until he was past age 50. But many older workers have less success in their employment efforts. Subtle (and not-so-subtle) age discrimination hampers their job searches at a time when they have the most to offer employers.

How the Pandemic Has Impacted the Job Market

The coronavirus pandemic has tightened the job market. Many employers have had mass layoffs. Retail giants like JC Penney, Lord & Taylor, and Nieman Marcus, along with less-known counterparts, have filed for bankruptcy.

The pandemic also triggered bankruptcies by restaurant chains, such as Chuck E Cheese’s, Le Pain Quotidien, and FoodFirst (which owns Brio and Bravo), fitness chains, such as 24-Hour Fitness and Gold’s Gym. The travel and hospitality industries also were hard-hit, with Marriott International forecasting large losses and airlines facing layoffs and furloughs despite federal bailouts.

New Opportunities for Age Discrimination

The pandemic also has created the opportunity for employers to commit age discrimination, whether intentionally or unintentionally. An employer may attempt to use layoffs to reduce average employee age and reshape its workforce to include more younger, less-expensive workers. Or, employers may not want to employ older workers out of concern they may be more vulnerable to COVID-19.

In COVID-19 Presents Disability Discrimination Issues, I discussed the Equal Employment Opportunity Commission (EEOC) guidance regarding COVID-19 under the Americans with Disabilities Act (ADA). Under that guidance, employers must provide employees who are at increased risk for COVID-19 due to a disability with reasonable accommodations designed to minimize the risk of the employee becoming ill.

However, being an older adult isn’t a disability under the ADA. Therefore, the ADA doesn’t require accommodations for COVID-19 unless an older adult also has a medical condition that makes them more vulnerable to COVID-19.

Age Discrimination and COVID-19

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. That doesn’t mean that an employer can discriminate against a 65-year-old in favor of a 40-year-old. Once an employee falls under the ADEA, employers may not treat them less favorably than a younger employee, even one who is also over age 40.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age, even if the employee requests it. In a March 27, 2020 webinar, EEOC attorneys made it clear that individuals do not have the right to telework or other accommodations for COVID-19 solely due to their age.

The Age Discrimination in Employment Act does not itself have an accommodation provision like the Americans with Disabilities Act. However, if an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers differently based on their age. 

When asked whether an employer may “exclude from the workplace an employee who is 65 years old or older and who does not have COVID-19, or symptoms associated with this disease, solely because the Center for Disease Control and Prevention has identified this age group as being at a higher risk of severe illness if they contract COVID-19,” the EEOC attorneys responded:

The answer is no. The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave. One way to show that an action was based on age would be if the employer did not take similar actions against comparable workers who are under the age of 40.

The ADEA doesn’t prohibit an employer from allowing older workers who want to telework to do so as long the employer doesn’t treat the older worker less favorably than similarly situated younger workers.

How Legitimate Business Decisions Can Be Age Discrimination

Employers may have legitimate business reasons for layoffs due to reduced revenues during the pandemic. It’s okay if employers lay off older workers, as long as older workers aren’t treated worse than younger workers based upon their age.

For instance, employers may not select an older worker for lay off while retaining a similarly situated younger worker unless the decision is based upon nondiscriminatory selection criteria, such as seniority. And an employer may not discriminate against older workers when calling back employees from a layoff.

Employers should pay attention to how their layoff and recall decisions affect older workers. Making decisions that have a disparate negative impact on older workers can be age discrimination even if the employer has no discriminatory intent.

Employer Best Practices

Employers should evaluate every employment decision to see how it would fare under a discrimination lens. Paradoxically, this may require that an employer focus on employees’ ages when making their decisions to assure older workers aren’t treated less favorably than their younger counterparts:

• Evaluate every layoff or recall in advance to determine if it appears to favor younger workers. Employers should make a list of employees by job title, seniority, and age. Then, the employer should assure that decisions within each job classification are based upon seniority or another non-discriminatory criterion.

• Don’t make layoff or recall decisions based upon characteristics, such as salary, which frequently are connected with age. Although it might seem like good business to keep two low-paid younger workers and lay off the higher paid older worker, that is unlawful age discrimination.

• Refrain from making comments about attributes tied with employee age. For instance, saying that an employee needs to keep their job because they have young children or commenting that an older worker didn’t learn how to use technology when they were in school may be viewed as a preference for younger employees.

• Be sure the duties performed by an older laid-off employee aren’t given to a younger employee after the layoff. Even if the older worker’s job title is eliminated, it’s age discrimination if the job duties continue to be performed by a younger employee.

• Seek to recall laid-off employees rather than hiring new employees. Laying off older workers and replacing them with younger ones can lead to an age discrimination claim.

Older Workers May Surprise You

Fortunately, David Lynch didn’t consider age when he selected a 48-year-old public school music teacher to write the score for Blue Velvet. Instead, Lynch saw potential in Badalamenti’s high-quality training and decades of experience with diverse musical styles. And as it turned out, Lynch was right. At age 50, Badalamenti was just coming into his fame and he had three decades remaining in his musical career.

Not every employee will create a musical score that survives the passage of time. But employers who view the pandemic as an opportunity for all employees, including older adults, to develop 21st-century skills that will be key in tomorrow’s workplace might likewise be pleased with the results.

© 2020 by Elizabeth A. Whitman

Any references clients and their legal situations have been modified to protect client confidentiality.

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties and any conditions in such contract are satisfied.