Age Discrimination and Electronic Privacy Law at Work

Introduction to Age Discrimination Law

Age discrimination legislation in the United States includes the Age Discrimination in Employment Act of 1967 (ADEA), the Age Discrimination Act of 1975, and Section 188 of the Workforce Investment Act of 1998 (Halbert & Ingulli, p. 41). Collectively, they prohibit age-based employment discrimination in hiring, promotional eligibility, and other privileges of employment in industries and ventures funded by the federal government.

Specifically, age discrimination legislation protects individuals aged 40 and older from discrimination that prevents them from equal opportunities to work and receive employment benefits based on their age (USDOL 2008). In principle, age discrimination protections do not relate directly to records information management functions, except to the extent that ordinary business records and communications often form the basis of proof in cases of alleged discrimination, as well as the basis of defenses to those causes of action, and are discoverable in legal disputes where they are subpoenaed as evidence.

In general, the basis of modern age discrimination legislation in the U.S. was originally prompted by gradual changes in lifespan and productivity in later years of life made possible by improved longevity and health in industrialized society (Henslin, p. 263). In the latter part of the 20th century, longevity increased dramatically, as did the health of older people, and the American Association of Retired Persons (AARP) became one of the most powerful political lobbying organizations in Washington. Consequently, the passage of age discrimination law enjoyed considerable political support throughout the country with little opposition. In the United States, age discrimination is a matter of civil law, and remedies are generally awarded in the form of compensatory monetary damages, lost wages, and reinstatement of employment benefits (Halbert & Ingulli, p. 41).

Types of Age-Based Employment Discrimination

Age discrimination legislation addresses three primary types of age-related employment discrimination. In 2000, the U.S. Supreme Court prohibited purposeful discrimination by treating older employees differently in Reeves v. Sanderson, but two federal district courts have ruled differently on the matter of prohibiting employment and hiring practices that discriminate on the basis of age where the discrimination is not purposeful in its intention but is only discriminatory in its effects (Friedman, pp. 594–6).

In 1996, the 6th Federal Circuit Court added age-based harassment as the basis for age discrimination lawsuits, in the same manner that other protected classes such as race and gender are protected from hostile work environments. The U.S. Supreme Court has not yet addressed this issue, which is currently determined by state law and therefore differs from state to state.

Ethical Dimensions of Age Discrimination

From an ethical point of view, age discrimination is fundamentally wrong because the only legitimate basis for age-based employment considerations are those where advanced age directly affects an individual's ability to perform the tasks associated with the position. Unless there are specific physical elements of the job that make employment unsuitable for older individuals, discrimination against older workers is as unjustified as discrimination based on race or gender.

Possible examples of particular types of employment where age-based limitations may be appropriate include law enforcement positions and certain other industries where deterioration in skills is age-specific, especially where reduced performance may expose the worker or others to danger.

Electronic Communications Privacy Act Overview

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits unauthorized interception or recording of private telephone conversations and other types of private communications. In 1986, the U.S. Congress amended the earlier legislation to include the interception of electronic transmissions sent by computers, such as emails (Halbert & Ingulli, p. 77). This amendment is known as the Electronic Communications Privacy Act (ECPA).

Electronic privacy law applies to employment and business records and information management in the workplace, with different rights and regulations depending on the specific communications medium involved. Generally, employee privacy rights to email systems and telephone message recording and retrieval systems are determined by the employment contract or by the employment policies of the employer and are not subject to legal disputes initiated by employees (Halbert & Ingulli, pp. 78–80).

The only exception giving employees privacy rights to communications is that live telephone conversations may not be intercepted or recorded without the permission of at least one person participating in the conversation under federal law. However, state law determines whether employers may record conversations in which they participate. Approximately half the states allow any person in a conversation to record a telephone call without the knowledge or consent of the other party; the other half require the consent of all parties to the conversation. Unlawful interception of protected communications is a federal criminal offense and may also expose the violator to civil penalties for invasion of privacy. The important distinction between live oral conversations and recorded communications applies at work because employees are not considered to have any privacy rights in message retrieval systems or email systems provided by the employer (Halbert & Ingulli, p. 81). In ordinary private life, interception of recorded messages, email transmissions, or stored computer information is a federal criminal offense.