Forms of Discrimination : Age

Workers should get and keep jobs based on their ability, not age. The Age Discrimination in Employment Act (ADEA)protects people age 40 and over from employment discrimination based on age. The law says that an employer may not fire, refuse to hire, or treat you differently than other employees because of your age. Have any of these things ever happened to you? The employer wanted a younger-looking person to do the job so you weren't hired.

Your boss wouldn't let you take some training courses. Then you got a poor job evaluation because you weren't "flexible" in taking on new assignments. Money was tight, so your boss fired you in order to keep younger workers who are paid less.

Your employer gave you undeserved poor performance evaluations and then used your "record" of poor performance to justify firing or demoting you.

our boss turned you down for a promotion. Instead, he hired someone from the outside who was younger because the company says it "needs new blood."

If you answered "yes" to any of these, you may be a victim of age discrimination.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) is your first defense against age discrimination. There has to be a lawful reason - not connected to age - for almost all employment decisions.

Who Is Covered by the ADEA?

The law covers workers and job applicants age 40 and over. The ADEA applies to employers with 20 or more employees. This includes local and state governments and the federal government. It also includes employment agencies and labor unions.

The ADEA does not apply to independent contractors or elected officials. It does not usually cover police and fire workers, certain federal employees in air traffic control or law enforcement, or certain highly paid executives. While persons in these positions could be retired on a mandatory basis, they cannot be denied a promotion or training base on age.

There are exceptions to the ADEA when age is a necessary part of a job. For example, an employer can hire a young person to play the role of a 12-year-old in a play.

Like New York, most states have anti-age discrimination laws that apply to employers with fewer than 20 employees.

What does the ADEA forbid?

Job ads or recruitment materials cannot mention age or say that a certain age is preferred.

Programs cannot set age limits for their trainees. Age can not be a factor in making any decisions about workers. This includes decisions about hiring, pay, promotions, or layoffs.

Employers cannot take action against workers who file a charge of age discrimination or who participate in any ADEA process.

With a few exceptions, employers cannot force employees to retire at a certain age.

Employers may offer voluntary early retirement without violating the ADEA. However, these offers often require employees to give up their right to make a claim under the ADEA. That requirement may be legal, but only if it follows strict rules. Get expert advice before you sign anything.

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:

Apprenticeship Programs

It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.

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 Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically 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

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.