Age Discrimination Law

Age discrimination occurs when an employee or job applicant receives less favorable treatment because of age. State law and the federal Age Discrimination in Employment Act (29 U.S.C. 621 to 634) prohibit employers from discriminating against protected older employees or applicants on the basis of age.

An employee's age should never open the door to discrimination. If you experience agism at work or when applying for jobs, you may want to discuss your options with a local employment attorney. 

Who Is Covered by the ADEA?

The ADEA protects workers 40 years of age and older from age-based discrimination related to terms, conditions, or privileges of employment. The ADEA applies to workplaces with 20 or more employees, including labor organizations, employment agencies, state and local governments, and the federal government.

Age Discrimination Law and the Employment Relationship

An employer may not discriminate based on age when making employment decisions about hiring, firing, promotions, layoffs, compensation, benefits, job assignments, and training. Even if a practice or policy appears neutral because it applies to all workers, if it negatively impacts workers age 40 or older and is not based on a reasonable factor other than age, it may be illegal.

Age Discrimination Law and Harassment

Employees covered by the act also receive protection from harassment based on age when behavior is frequent and severe enough to create a hostile or offensive work environment or result in an adverse employment decision against the protected worker.

Exceptions to the ADEA

Besides the exception for companies with fewer than 20 employees, other exceptions to the law apply, including:

• Bona fide occupational qualification (BFOQ): Certain age limitations are allowable if there is a bona fide reason to implement them. The age limitation must be necessary for the worker to perform the job functions adequately. There must be a reasonable belief that workers over a certain age cannot perform the job safely, or assessing each worker individually is highly impracticable or even impossible.
• Bona fide seniority system: A seniority system determines benefits and wages.
• Reasonable factors other than age (RFOA): The employee's experience, education, or skills justify different treatment.
• Bona fide executive or high policymaker: Executives and people who occupy high policy-making positions can be forced to retire at age 65 if they will receive a minimum annual pension benefit of at least $44,000.

ADEA Protection

ADEA protection from discriminatory practices includes:

• Apprentice programs
• Job notices and advertisements
• Pre-employment inquiries
• Benefits

Apprenticeship Programs

It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate based on a person's age. The U.S. Department of Labor or State Apprenticeship Agency validates Registered Apprenticeship Programs (RAP).

An apprenticeship program sponsor is any employer, association, committee, or organization that operates a RAP. The U.S. Equal Employment Opportunity Commission (EEOC) regulations, under 29 C.F.R. 30.3, specifically bar age discrimination against those 40 and older. The EEOC protects an apprentice or applicant over 40 from discrimination.

Applicable state or local age discrimination laws may apply. Some of these laws ban age discrimination against those younger than 40 years of age. Sponsors may not discriminate in the following employment actions, including:

• Recruitment
• Selection
• Placement
• Rates of pay
• Hours of work
• Job assignments
• Terminations

Age limitations in apprenticeship programs are valid only if they fall within certain exceptions under the ADEA or the EEOC grants a specific exemption. The EEOC regulations also include exceptions for programs with fewer than five apprentices and programs subject to approved EEO programs.

Job Notices and Advertisements

The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements.

There is a narrow exception. A job notice or advertisement may specify an age limit only in the rare circumstances where age (including early retirement or mandatory retirement) is a "bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of the business.

Pre-Employment Inquiries and Interview Questions

The ADEA does not explicitly block an employer from asking an applicant's age or date of birth. Such inquiries may not deter older workers from applying for employment. The questions may also not otherwise show possible intent to discriminate based on age.

Requests for age information get close scrutiny. This ensures they asked the question for a lawful reason rather than a purpose banned by the ADEA.

Employee Benefits

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to ban employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers.

Increased costs create a disincentive to hire older workers. So, in limited circumstances, an employer can reduce benefits based on age as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Employers can coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit. In these cases, the employer can reduce a benefit based on age.

Waiver of ADEA Rights and Claims

An employee can waive ADEA rights or claims in a settlement offer or when participating in an employment termination program or an exit incentive program (early retirement program). A valid waiver must meet specific minimum requirements, including:

• It is in writing and is understandable
• It refers explicitly to ADEA claims and rights
• It does not waive future rights and claims
• It is given in exchange for something valuable that the worker is not already entitled to receive
• It advises the worker to consult with an attorney before signing the waiver
• It gives the worker at least 21 days to consider the waiver and at least seven days to revoke it after signing it

Additional requirements apply to waivers involving an employment termination or exit incentive program.

Age Discrimination and State Laws

Many states have laws prohibiting age discrimination. While some offer the same protection as federal law, other states provide even greater protection to workers under age 40 or apply to employers with fewer than 20 employees.

Filing an Age Discrimination Claim

A protected person may file an age discrimination claim under both state and federal law, or just under one. An employee must file a complaint based on federal law with the EEOC and a state-based claim with the appropriate agency. If based on a state law prohibiting age discrimination in the workplace and enforced by a state agency, a worker must file a claim within 300 days of the discriminatory act, or 180 days if it is an ADEA claim.

Remedies available include:

• Reinstatement and promotion
• Wages, back pay, and benefits the employee would have received
• Money damages
• Injunctive relief
• Attorney fees

Need Legal Advice? Find an Employment Law Lawyer To Help With an Age Discrimination Claim

Are you a victim of age discrimination? An experienced employment discrimination attorney understands employers' tactics to remove older workers. A person's age should never mean that they can be discriminated against. Talk to an age discrimination attorney in your area for specific answers to your questions and to file an employment action today.