Age Discrimination in Employment

Federal and state laws prevent employers from discriminating against job applicants and employees based on age. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees and applicants 40 years of age and over. This article discusses the ADEA, protections for older workers, and how to avoid ageism in the workplace.

Remember, younger workers can be victims of ageism even if age discrimination laws don't protect them. For example, take this group of 20-something Goldman Sachs analysts who were required to work 95-hour weeks. Their older colleagues were not expected to work such long hours.

You can avoid almost all ageism and age discrimination claims by being alert to age stereotypes and bias. Thinking younger employees can handle overwork is as discriminatory as thinking older workers cannot keep up.

Provisions of the ADEA

The ADEA prohibits employers from discriminating based on age at all stages of the employment process. This includes interviewing, hiring, and termination. Base all employment decisions on job performance, not age, unless it is a bona fide occupational qualification (BFOQ). For instance, airline pilots have a mandatory retirement age based on FAA safety concerns.

The ADEA also applies to:

• Advertisements and job descriptions
• Health insurance and other employee benefits
• Termination, layoffs, and downsizing policies
• Employers cannot retaliate against employees who take action under ADEA

The Equal Employment Opportunity Commission (EEOC) oversees all discrimination in employment practices claims. Employers may not discriminate against workers for filing or participating in the investigation of an EEOC claim.

Identifying and Avoiding Ageism

Ageism and age discrimination are difficult to recognize. It isn't as simple as noticing a person's skin color or gender. Ageism may be so subtle you may not see you're doing it. Here are some examples of ageism in the hiring process and the workplace:

• Rejecting resumes with college graduation dates more than ten years old or rejecting resumes more than one page long. At best, this forces applicants to fudge their resumes or resort to tricks to get the pertinent details onto a single page. At worst, you're eliminating people considered to be too old for your company.
• Asking interview questions like "When would you like to retire?" or "Do you consider yourself tech-savvy?" Even if you ask all your candidates these questions, it can seem like you're trying to screen out older people.
• Ignoring ageist harassment. Occasional "over-the-hill" jokes are one thing, but they should be rare, if at all. Broad hints about retirement are no less harassment than remarks about someone's appearance.

Developing an anti-age discrimination policy is no different than any other anti-discrimination policy. Your employment policy on age should be no different than your policy on race or religion. When a small business owner or the human resources department creates the policy, age should be one of the groups protected from harassment and discriminatory behavior.

Claims Under the ADEA

When an employee files a claim under the ADEA, they have the burden of proving that their employer performed some action that adversely affected the worker based on their age. The ADEA distinguishes between two types of effects an action can have: impact and intent.

Disparate-impact policies are those which, although facially neutral, affect older employees more than younger ones. In the case of Smith v. City of Jackson, the city instituted a department-wide pay increase to bring all police officers up to the national standard. The plaintiffs sued, claiming they received a lower raise than their younger counterparts.

Disparate-intent policies, sometimes called disparate treatment, are policies that deliberately target older workers intending to exclude them. A workplace that announces it will only hire Millennials because older people "don't get it" would be a disparate-intent case.

The ADEA allows employers to treat older workers differently than younger co-workers if the employer can show there is a reasonable factor other than age (RFOA) for the treatment. For instance, in the case of Smith v. City of Jackson, the city argued that the disparity in the raises was due to time on the job, not age.

Employers can protect themselves from ADEA lawsuits with clear disciplinary policies, complete employee records, and, in the words of the Federal Record, "avoiding use of neutral practices that disproportionately affect older workers."

Waiver of ADEA Rights

During times of economic slowdown, businesses of every size have to trim their workforces. Depending on your circumstances, you may lay off new employees first or ask your older workers if they want an early retirement. This is beneficial if many senior workers draw high pay and benefits.

The ADEA allows employees to waive their rights under the ADEA in exchange for a severance package or other payment. The EEOC has extensive guidance for employers and employees before signing such a waiver, and you should consult a business law attorney before offering any waivers to your workers. Your waiver must:

• Be written in a manner and language the worker can easily understand. This means no legal jargon or complicated sentences. The waiver cannot mislead or misinform the worker about the benefits or limits of the waiver.
• Refer to the Age Discrimination in Employment Act of 1967 (ADEA) in full, by name. The waiver must include all rights and claims arising under the ADEA.
• Advise the worker to consult their own attorney before signing.
• Provide the worker with at least 21 days to consider the agreement. The 21 days begins on the date of the final offer, so any changes or alterations reset that date.
• Give the worker at least seven days after signing to revoke their agreement. Neither party can waive this revocation period for any reason.
• The waiver cannot contain any language that waives rights or claims that occur after the date of signing. This includes actions that arise from the waiver itself.
• Be supported by consideration beyond any that the employee is already entitled to.

If the waiver does not meet all seven of these requirements, it is invalid and unenforceable. Fraud, duress, or undue influence may also invalidate the waiver, depending on the circumstances of the signing.

Other Federal Laws

Older workers have additional protections in certain areas. The Older Workers' Benefit Protection Act prevents employers from using age as a factor in employee benefits. This includes insurance and retirement. It is an amendment to the ADEA.

The Workforce Investment Act of 1998 (WIA) prohibits discrimination against applicants, employees, and participants based on age. The WIA (now the Workforce Innovation and Opportunity Act) helps employers train, hire, and retain skilled workers. The most common examples of this are state and local government employers who receive federal funding.

State Laws

Almost every state has age discrimination laws. These laws usually mirror the ADEA, although a few, such as New Jersey, protect workers from the age of 18. A few states have begun enacting reverse age discrimination laws that protect young people entering the job market.

The ADEA applies to employers with 20 or more employees. Many states have laws that affect smaller businesses. For these reasons, always check your state employment laws when writing your workplace policies.

Legal Help With Age Discrimination Claims

Under the ADEA, employees and job applicants have the right to be free from age discrimination in the employment relationship. Employers have a duty to prevent age discrimination in their workplaces. Contact an experienced business law attorney for legal assistance.