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

Who is Covered by the ADEA

The ADEA protects workers age 40 and older from age-based discrimination that relates 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 results in a negative impact on workers age 40 or older and it 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 results 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 in question must be necessary in order for the worker to perform the functions of the job adequately. There must be a reasonable belief that workers over a certain age are unable to perform the job safely or it is highly impracticable or even impossible to assess each worker individually.

• Bona fide seniority system. A seniority system determines benefits and wages.

• Reasonable factors other than age (RFOA). The employees experience, education, or skills justify different treatment.

• Bona fide executive or high policymaker. Executives and people that 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: Age limitations are only valid if an ADEA exception applies or if the Equal Employment Opportunity Commission (EEOC) grants an exemption.

• Job notices and advertisements: The ADEA prohibits age specifications and limitations unless a bona fide occupational qualification exception applies.

• Pre-Employment inquiries: The ADEA allows requests for age or date of birth information, but such requests may give rise to scrutiny to ensure that the acquisition of the information was for a lawful purpose permitted by the ADEA.

• Benefits: The Older Workers Benefit Protection Act (29 U.S.C. 623, 626, and 630) prohibits an employer from using the age of a worker as a basis for denying benefits. In general, the employer must provide equal benefits to both younger and older workers. However, in some circumstances the law allows an employer to provide reduced benefits if the cost is the same as providing benefits to younger workers. In other cases, employers may give older workers less benefits than younger workers if they provide additional benefits that are equal to the difference.

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 certain minimum requirements, including:

• It is in writing and is understandable;
• It specifically refers 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 receiving;
• It advises the worker to consult with an attorney before signing the waiver; and
• It gives the worker at least 21 days to think about the waiver and at least 7 days to revoke it after signing it.

Additional requirements apply to waivers involving an employment termination program or an 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 under just one. An employee must file a complaint based on federal law with the EEOC and a state-based claim with the appropriate state agency. If based on a state law prohibiting age discrimination in the workplace and if enforced by a state agency, a worker must file a claim within 300 days of the discriminatory act or within 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