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Age Discrimination in Employment: An Overview

Federal and state laws prevent an employer from discriminating against job applicants and employees on the basis of age. Despite laws to protect employees, age discrimination and harassment in the workplace occur in every industry across job titles. This article provides an overview of age discrimination in the workplace.

The Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) is a federal age discrimination law prohibiting employment practices that discriminate against employees over age 40.

Age discrimination cases under federal law address various employment actions, including:

  • Job advertisements
  • Application process
  • Compensation
  • Hiring
  • Promotion
  • Termination
  • Job notices
  • Pre-employment inquiries
  • Apprenticeship programs

Age-based discrimination is unlawful in every phase of employment and all employment decisions.

What Employers Are Covered by the ADEA?

The ADEA protects those over 40 from discriminatory practices due to a person's age. It applies to:

  • Federal, local, and state governments
  • Companies with 20 or more employees
  • Employment agencies
  • Labor organizations with at least 25 members

The law does not protect people under 40, independent contractors, or military personnel.

What Does the ADEA Prohibit?

The U.S. Equal Employment Opportunity Commission (EEOC) provides that:

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited.

The ADEA is very clear on its prohibitions, some of which are summarized here for reference.

  • The ADEA prohibits employers from discriminating on the basis of age at any stage of the employment process.
  • The ADEA applies to advertisements for available positions, application process, interview, hiring, compensation, promotion or demotion, work evaluations, job assignments, discipline, and termination.
  • Under the ADEA, advertisements can only include age limitations favoring younger workers if age is a bona fide occupational qualification based on business necessity.
  • The ADEA provides that an employer cannot reduce health or life insurance benefits for older employees.
  • The ADEA seeks to prevent employers from discriminating against older workers when reducing the size of the workforce (i.e. "downsizing").
  • The ADEA prohibits employers from forcing employees to take early retirement.
  • Workers who take action under the ADEA cannot be discriminated against for filing, testifying at, or participating in a claim against an employer.

The EEOC is responsible for investigating reported violations and enforcing provisions of the ADEA.

What Are Examples of Age Discrimination Claims in the Workplace?

Age discrimination can take many forms. It can be anything from jokes based on age to offensive age-based comments or gestures. An employee can be harassed by:

  • Co-workers
  • Supervisors
  • Customers
  • Management

Not every instance of negative age-based treatment will result in a viable age discrimination claim, though. Claims of unlawful discrimination based on age can be difficult to prove.

Hostile Work Environment Claims

Hostile work environment claims are common under the ADEA. Under the ADEA, a work environment is considered hostile if a reasonable person would have found the workplace to be unfriendly/unpleasant. The plaintiff must perceive that the treatment occurred because the plaintiff was over 40 years old. An employee may claim that the employer caused or contributed to creating a hostile work environment.

Such claims vary by jurisdiction, but they often require the employee to prove:

  • The employee was subjected to age-related verbal or physical discrimination
  • The conduct was unwelcomed by the employee
  • The conduct was severe and pervasive enough to alter the conditions of employment and create an abusive work environment

When an employee makes a hostile work environment claim, a court will look at all circumstances when assessing whether an employee is a victim of a hostile work environment.

How Can You Prove Age Discrimination?

To have a successful claim under the ADEA, an employee must provide evidence indicating the employer is biased against their age and treating them differently than other employees because of age. If so, the employee may have a discrimination claim under the ADEA.

It is not enough for an employee to show that a younger person replaced the worker, although this can strengthen a claim under the ADEA. The employee must present evidence of:

  • Harassment
  • Unfair discipline
  • Favoritism

The employee must show that some adverse action was taken based on age. An employer can only be held liable for age discrimination if the employee can show an intentional action against the employee because of the employee's age.

Documenting evidence of age-based discrimination is critical. An attorney can help explain how you can best prove employment discrimination in your case.

How Long Do You Have to File an Age Discrimination Claim?

Your particular claim will determine the time limit for filing your claim. There are strict time limits for filing claims. In many cases, you only have 180 days from the last date of discrimination.

Employees who believe they have an age discrimination claim under the Age Discrimination in Employment Act should contact an experienced employees' rights attorney to help determine the exact time limit in your case.

How Does the EEOC Investigate Reported ADEA Violations?

The EEOC is responsible for investigating reported violations and enforcing provisions of the ADEA. EEOC cases are typically opened by employees who report incidents of discrimination. When the EEOC receives a complaint, they file a "charge."

The EEOC can settle claims between a charging party and their employer. Charges receive priority depending on the strength of the initial facts. Where the evidence is weak, the EEOC can order additional investigation.

The EEOC may offer mediation if the parties disagree on a settlement. A charge can be dismissed at any point if the EEOC finds no violation of the law. If the agency cannot resolve the charge through its processes, the charging party can file a lawsuit within 90 days of receiving a "right to sue" letter from the EEOC.

If the agency finds evidence that discrimination occurred, the EEOC issues a letter of determination and attempts conciliation with the employer to develop a remedy for the problem. The EEOC can commence a suit in federal court on behalf of the charging party or issue a notice closing the case and providing the charging party with a "right to sue" letter. This letter permits them to pursue a lawsuit on their behalf within 90 days of the issuance of the notice.

Waiver of ADEA Rights

Employees may waive their rights under the ADEA at an employer's request in exchange for incentives, such as a severance package or other consideration.

The ADEA sets out specific standards that must be met before waiving such rights can be considered knowing and voluntary. A valid ADEA waiver must:

  • Be in writing and understandable
  • Specifically refer to ADEA rights or claims
  • Not contain language waiving any rights or claims that may exist in the future
  • Advise the employee in writing to consult independent counsel before signing
  • Provide the employee with at least 21 days to consider the agreement and at least seven days to revoke the agreement

Exceptions to ADEA Forced Retirement Age

In most cases, the federal government (and some state and local governments) prohibit forced retirement. But there are exceptions. Under the ADEA, mandatory retirement ages are allowed. They are allowed in cases where age is a bona fide occupational qualification (BFOQ) necessary to perform the position's duties.

For example, in physically demanding jobs, age can be a factor in physically intensive jobs such as airline pilots and bus drivers, where safety is a primary concern.

Older Workers Benefit Protection Act

The federal law Older Workers Benefit Protection Act (OWBPA) amended the ADEA. The OWBPA makes it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. The OWBPA addresses benefits. This law makes it unlawful to:

  • Deny benefits to older employees
  • Require older workers to waive their rights for an employee benefit, including retirement benefits or pension benefits
  • Single out older workers for mandatory retirement
  • Use age as a basis for employment discrimination

Employers can coordinate retiree health benefit plans with eligibility with Medicare or comparable state-sponsored health benefits without violating OWBPA.

Federal Employment Discrimination

Age discrimination is only one type of discrimination in the workplace. See FindLaw's Federal Employment Discrimination page for additional anti-discrimination laws and to learn more about workplace discrimination. This section provides a general overview of anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, pregnancy, or national origin.

Age Discrimination in Your Workplace? Get Legal Help

Employment law provides that employees and applicants for employment have the right to be free from age discrimination.

If you believe you are a victim of age discrimination, an employment lawyer can explain your legal options. Employers who need legal advice or compliance assistance concerning the ADEA should contact an employment attorney who works with employers.

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