Age Discrimination
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.
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:
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.
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.
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.
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; and
- 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.
