The current state and federal age discrimination laws may be said to fail to adequately protect employees in the entertainment industry. In 1967, Congress implemented The Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§621-634.[3] The purpose of the ADEA is “to promote employment of older persons based on their ability rather than age” and “to prohibit arbitrary age discrimination in employment.”

Employers should regularly review their policies and practices to ensure that older applicants and employees are treated the same as younger individuals in connection with hiring and all terms and conditions of employment.[1] 29 U.S.C. 621, et seq.[2] 29 U.S.C. 621(b).[3] Pub.

w they determine whether use of the tool causes a “substantially” different selection rate for individuals with a protected characteristic under Title VII. U.S. Equal Emp. Opportunity Comm’n, Compliance Manual Section 2 Threshold Issues § 2-III.B.2 (May 12, 2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues#2-III-B-2.If while developing the tool, the employer discovers that using it would have an adverse impact, the employer should reduce the impact or adopt an alternative tool. The new EEOC guidance explains that employers may be liable for failure to adopt a less discriminatory algorithm that was considered during the development process. See 42 U.S.C. § 2000e-2(k)(1)(A)(ii).AI and ADEA Disparate Impact DiscriminationThe EEOC’s concerns regarding the discriminatory impact of AI tools is not limited to the ADA and Title VII. Similar claims can arise under the other laws within the EEOC’s jurisdiction, including the Age Discrimination in Employment Act of 1967 (ADEA) 29 U.S.C. §621 et seq.On May 5, 2022, the EEOC filed suit against three integrated companies that provide English-language tutoring services to students in China alleging the defendant employer used application software that automatically rejected female applicants over the age 55 and male applicants over the age 60. (EEOC v. iTutorGroup, Inc. et al, Case No. 1:22-cv-2565, E.D.N.Y)). On August 9, 2023, parties filed a joint notice of settlement and a request for approval and execution of a consent decree. This appears to be the first settlement of an AI discrimination lawsuit brought by the EEOC and there are likely more to come.National Labor Relations BoardThe EEOC is not the only “sheriff” flashing its badge and targeting employer use of AI. The National Labor Relations Board (NLRB or Board), which enforces the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§151-169, has identified certain emerging technologies employing AI as potentially running afoul of Section 7 of the NLRA.Section 7

After nearly two years of highly contested litigation, the Eastern District of Tennessee United States District Court recently granted final approval of a class action settlement resolving Tennessee auto-workers’ age discrimination claims against Volkswagen. Plaintiffs, represented by attorneys in Sanford Heisler Sharp LLP’s Nashville and New York offices, brought this lawsuit on behalf of older workers to stop Volkswagen from implementing what was alleged to be a systematic corporate initiative to phase out older workers while transitioning to a younger and more technology driven corporate plan in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”) and the Tennessee Human Rights Act, T.C.A. §§ 4-21-101, et seq. (“THRA”).While the Volkswagen workers were able to secure an excellent outcome, one that required the company to make changes to its hiring, promotion, management training, and complaints and investigation procedures, much remains to be done in the fight against age discrimination. The underlying issues raised by the class of Volkswagen employees are unfortunately all too familiar for workers around the nation.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).Gilbert v. Homar, 520 U.S. 924 (1997).Gilbert, 520 U.S. at 931–32 (citing Mathews v. Eldridge), 424 U.S. 319, 335.42 U.S.C. § 2000e et seq.; 29 U. S.C. 621 et seq.; 42 U.S.C. § 2000ff et seq.N.Y. Labor Law § 201-d; Cal. Labor Code § 96.45 C.F.R. § 164.502(iv).42 C.F.R. § 493.1291(l).E.g., Computer Fraud and Abuse Act of 1984, 18 U.S.C. § 1030; 18 U.S.C. §§ 2510-2522.Cal.

Title I of the Americans with Disabilities Act, at 42 U.S.C. § 12112(d)(4)(A) prohibits a covered employer from requiring an employee to submit to a medical examination or otherwise respond to medical inquiries about any disability “unless such examination or inquiry is shown to be job-related and consistent with business necessity.”In Hazen Paper Co. v. Biggins, the United States Supreme Court explained the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.:Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA.

The dissent points to the judge's intervention in the questioning of defense witnesses and a jury charge that stated that the "issue for you to determine is whether the alleged backdating was a legitimate business reason for terminating plaintiff's employment." The dissent concludes that "Congress would croak to learn that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., would entitle an employee to recover in the circumstances of this case. I too croak, in harmony.

In 1967, the federal government passed the Age Discrimination in Employment Act (ADEA) “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. § 621(b). The ADEA protects older workers from age discrimination, including wrongful terminations, failures to hire, and discriminatory work conditions.

On November 6, 2018, the Supreme Court issued its decision in Mount Lemmon Fire District v. Guido, 2018 WL 5794639 (2018), and held that state and local governments of any size are covered under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.Therefore, states and their political subdivisions are covered by the ADEA regardless of whether they have twenty employees.In this case, two former employees of the Mount Lemmon Fire District, a political subdivision in Arizona, sued their employer for terminating their employment in violation of the ADEA. The former employees were the two oldest full-time firefighters at ages forty-six and fifty-four.

In the first opinion of its current term, the Supreme Court held that state and local governments are covered “employers” under the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621, et seq. “ADEA”) regardless of how many employees they have.Mount Lemmon Fire Department v. Guido, 586 U.S. ___ (2018). The case was brought against the Mount Lemmon Fire District by its two most senior firefighters, who claimed that their termination in the midst of budgetary constraints violated the ADEA.