Age discrimination

It is unlawful for an employer to discriminate on the basis of age against workers who are at least 40 years old. Some states provide coverage for broader age groups. Under this law it is illegal to employ help wanted ads with age restrictions such as "25 to 35", "young" or "college student" or otherwise attempt to hire only individuals in a certain age category. Attempts to achieve a "younger image" for a company through employment decisions is prohibited. Even if both employees are over 40 when a decision is made between them, age cannot be a factor in the action or there will be employer liability.

No worker, except certain executives, can be forced into involuntary retirement at a certain age, and with the removal of the upper protected limit of 70, persons over that age are fully protected also. The fact that a state may have laws involving ages for employment does not insulate a business from liability. However if the employer can show a bona fide occupational qualification for age related limits, then action can be taken on that basis.

Employee pension and benefit plans must treat employees of all ages equally. The fact that a worker is older cannot be a basis for a reduction in benefits when others of different ages are not treated in the same way. "Downsizing" or "RIF’s" (a reduction in force) cannot be discriminatory based on age, and evidence of a statistical disparity disfavoring older workers on a downsizing can be a basis for an adverse impact finding against the business. This involves a statistical showing that the distribution of terminated persons involved a significantly greater number of older persons than was probable without a discriminatory intent.


 

• 1Harassment
• 2Sexual harassment
• 3Job Discrimination
• 4Age discrimination
  • 4.1About ADEA
  • 4.2Statistics
  • 4.3Contact EEOC
  • 4.4Need more information?
  • 4.5Hiring, Firing, Wrongful Termination
• 5Equal Opportunity

[top]About ADEA

Source: The U.S. Equal Employment Opportunity Commission

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:

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.

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:

1. be in writing and be understandable;

2. specifically refer to ADEA rights or claims;

3. not waive rights or claims that may arise in the future;

4. be in exchange for valuable consideration;

5. advise the individual in writing to consult an attorney before signing the waiver; and

6. 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.

[top]Statistics

In Fiscal Year 2006, EEOC received 13,569 charges of age discrimination. EEOC resolved 14,146 age discrimination charges in FY 2006 and recovered $51.5 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

Charge Statistics: Age Discrimination

[top]Contact EEOC

EEOC's customer service representatives are available to assist you in more than 150 languages between 8:00 a.m. and 8:00 p.m. Eastern Time. An automated system with answers to frequently asked questions is available on a 24-hour basis. You can reach EEOC:

By phone:

1-800-669-4000

If you have a TTY device for hearing impaired:

TTY number is 1-800-669-6820

By Email:

Please include your zip code and/or city and state so that your email will be sent to the appropriate office.

info@ask.eeoc.gov

By mail or fax:

Please contact the appropriate field office:

EEOC Field Office List and Jurisdictional Map

EEOC Headquarters is located at:

U.S. Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507
Phone: (202) 663-4900
TTY: (202) 663-4494

[top]Need more information?

U.S. Equal Employment Opportunity Commission (EEOC)

U.S. Equal Employment Opportunity Commission - Age Discrimination


The law:

The Age Discrimination in Employment Act of 1967


The regulations:

29 C.F.R Part 1625: Age Discrimination in Employment Act

29 C.F.R Part 1626: Procedures--Age Discrimination in Employment Act

29 C.F.R Part 1627: Records to be made or kept relating to age: notices to be posted: administrative exemptions


Enforcement Guidances and Policy Documents:

Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.

Compliance Manual Section 10: Compensation Discrimination

Compliance Manual Section 3: Employee Benefits


See also:

Questions and Answers: Compliance Manual Section on Employee Benefits

Rescission of Section IV (B) of EEOC Compliance Manual Chapter on "Employee Benefits" and deletion of example


You may also be interested in:

How to File a Charge of Employment Discrimination

Mediation at EEOC

Training and Outreach

Information for Small Employers

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