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Age Discrimination in Employment Act

Age-based discrimination remains an issue in the workplace despite federal laws to prevent it. The Age Discrimination in Employment Act of 1967 (ADEA) protects people 40 years of age or older from employment discrimination on the basis of age. This article discusses federal and state laws relating to age discrimination in employment.

What Is the Age Discrimination in Employment Act?

The ADEA prohibits discrimination against people 40 years old or older from employment discrimination. The ADEA's protections apply to employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of their age for any:

  • Term
  • Condition of employment
  • Privilege of employment

The law bans discrimination in a range of employment decisions, including:

  • Hiring
  • Firing
  • Promotion
  • Layoff
  • Compensation
  • Benefits
  • Job assignments
  • Training

The ADEA permits employers to favor older workers based on age even when doing so adversely affects younger employees. A younger worker under 40 is not considered a victim of age discrimination under the ADEA.

It is also illegal to retaliate against a person for opposing employment practices that discriminate based on age. The ADEA bans retaliation for the following:

  • Filing an age discrimination charge
  • Testifying
  • Participating in any investigation, proceeding, or litigation under the ADEA

The ADEA applies to employers with 20 or more employees, including state and local governments. It applies to employment agencies, labor organizations, and the federal government. Besides federal laws, state laws govern aspects of employment discrimination, which includes age discrimination. Such laws seek to protect older employees in the work environment and allow for age discrimination claims.

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

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

An employer may ask an employee to waive their rights or claims under the ADEA either in settling an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. The ADEA, as amended by OWBPA, sets out specific minimum standards for a waiver. The waiver must be known and voluntary. Among other requirements, a valid ADEA waiver must:

  • Be written in a clearly understandable manner
  • Specifically refer to ADEA rights or claims
  • Not waive rights or claims that may arise in the future
  • In exchange for valuable consideration
  • Tell the person in writing to consult an attorney before signing the waiver
  • Give the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the requirements for a valid waiver are more extensive. See the EEOC's guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements for detailed information about waivers.

Age Discrimination: Related Resources

Age discrimination remains an issue in the workplace. If you want more information about specific topics in age discrimination, the following resources can help.

Experiencing Age Discrimination in the Workplace? An Attorney Can Help

If you believe you're experiencing discrimination based on age, a local employment attorney specializing in workplace discrimination can help. Violations of age discrimination laws in your job aren't always obvious. Sometimes, an employer's subtle actions are discriminatory practices. To determine if this is the case in your situation, an employment attorney can help.

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