Employment Age Discrimination

Discriminating against employees and applicants based on their age is generally prohibited by a number of federal and state laws. These laws work in concert and cover all but the smallest of employers.

The Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. ADEA protections include:

• Job Notices and Advertisements : The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of the business.
• Pre-Employment Inquiries : The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
• Benefits : The ADEA was amended by the Older Workers Benefit Protection Act to prohibit 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, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to 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 are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.
• Waivers of ADEA Rights : An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:
• be in writing and be understandable;
• specifically refer to ADEA rights or claims;
• not waive rights or claims that may arise in the future;
• be in exchange for valuable consideration;
• advise the individual in writing to consult an attorney before signing the waiver;
• provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

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.