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Age Discrimination in Employment

Federal and state laws prevent an employer from discriminating against job applicants and employees on the basis of age. The best known example of these laws, the federal Age Discrimination in Employment Act (ADEA), prohibits employers from discriminating against employers and applicants who are 40 years of age and older based on their age.  Following is a discussion of the ADEA and its protections for older workers.

In addition to the ADEA, another federal law prohibiting age discrimination in employment is the Older Workers' Benefit Protection Act, which makes it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Also, see Federal Employment Discrimination for a general overview of anti-discrimination laws.

Provisions of the ADEA

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

  • The ADEA prohibits employers from discriminating on the basis of age at any stage of the employment process -- including application, interview, hiring, promotion, and termination.
  • The ADEA applies to advertisements for available positions, application process, interview, hiring, compensation, promotion or demotion, work evaluations, job assignments, discipline, and termination. Advertisements can only include age limitations 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.

Claims Under the ADEA

Claims of unlawful discrimination on the basis of age can be difficult to prove. To successfully prove an employee was discriminated against on the basis of age, the employee must show that some adverse action was taken on the basis of his or her age.

Such an adverse action can be shown be direct evidence, but such evidence is not usually available. It is not enough for an employee to show that he or she was replaced by a younger person, although this fact can serve to strengthen a claim under the ADEA. An employer can only be held liable for age discrimination if the employee can show that an intentional action was taken against the employee because of the employee's age.

Waiver of ADEA Rights

An employee may waive his or her rights under the ADEA at the request of an employer, in exchange for a severance package or other consideration. The ADEA sets out specific standards that must be met before a waiver of 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.

The Work Investment Act of 1998

Section 188 of the Workforce Investment Act of 1998 (WIA) prohibits discrimination against applicants, employees and participants in WIA Title I-financially assisted programs and activities, as well as programs that are part of the One-Stop system, on the ground of age. The most common examples of this are state and local government employers who receive federal funding.

State Laws

Almost every state also has some form of protection against age discrimination. These laws typically mirror federal laws and usually set the age of protection at 40. A few laws, however, provide broader protection than existing federal laws, so always check to see if your state offers additional protection.

Another noteworthy difference between federal and state laws is that although, the primary federal law, the ADEA, is limited to employers with 20 or more employees, many state laws specifically apply to employers with less than 20 employees. Even if the ADEA doesn't apply to your employer, there's a good chance that your state's laws will. 

For Employers - Legal Help with Age Discrimination Claims

Under the ADEA, employees and job applicants for employment have the right to be free from age discrimination in hiring, firing, promotion, training, benefits, compensation, and other aspects of the employment relationship. If you are an employer faced with a potential claim by an employee under the ADEA, contact an experienced employment law attorney to discuss your situation and protect your business.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

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Next Steps

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