At what age is an individual protected by the Age Discrimination in Employment Act of 1967 ADEA )?

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, but not limited to, 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 to labor organizations, as well as to the federal government.

Job Notices and Advertisements

The ADEA makes it unlawful to include age preferences, limitations or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice of advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupation qualification" (BFOQ) reasonably necessary to the essence of the business.

Pre-Employment Inquries

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 of a lawful purpose, rather than for a purpose prohibited by the ADEA.

Waiver of ADEA Rights

At an employer’s request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among the other requirements, a valid ADEA waiver:

• must be in writing and be understandable;
• must specifically refer to ADEA rights or claims;
• may not waive rights or claims that may arise in the future;
• must be in exchange for valuable consideration;
• must advise the individual in writing to consult an attorney before signing the waiver; and
• must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.

In addition, 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.

En español | Age discrimination in the workplace persists as a serious and pervasive problem. Charges of age discrimination spiked during the Great Recession. It’s not easy to win if you file a complaint, but there are ways to bolster your case. Read on to learn about the law that protects you and what you can do if you or someone you know becomes a victim of age discrimination.

The Law

The Age Discrimination in Employment Act (ADEA) is a federal law that protects workers and job applicants age 40 and over from age-based discrimination in all aspects of employment. The ADEA does not apply to elected officials, independent contractors or military personnel. The law does apply to:

• Employers with at least 20 employees

• Employment agencies

• The federal government

• State and local government (though remedies are often limited)

• Labor organizations with at least 25 members

In addition, every state has a law that prohibits age discrimination in employment. Most state laws apply to employers with fewer than 20 employees, and often provide stronger protection for older workers than federal law.

The time limits for filing complaints and the procedures for resolving them differ from state to state and from the federal ADEA. The Workplace Fairness website provides information on each state’s discrimination law.

How the ADEA Protects You

The ADEA prohibits age discrimination in decisions about hiring, firing, layoffs, pay, benefits, promotions, demotions, performance reviews or any other condition of employment.

Under the ADEA, employers can’t:

• Mention age or say that a certain age is preferred in job ads and recruiting materials; it is questionable but not automatically illegal to ask for date of birth or graduation on a job application

• Set age limits for training programs

• Retaliate against you if you file charges of age discrimination or help the government investigate charges

• Force you to retire at a certain age (except for a few narrow exceptions)

The law also prohibits policies and practices that have a “disparate impact” on older workers. These are policies that appear to be age-neutral but fall more harshly on older workers. An example is a school district that announces it won’t hire teachers with more than 20 years of experience. Policies or practices that have a disproportionately adverse impact on older workers are unlawful unless the employer can prove they are based on a reasonable factor other than age.

Employee Benefit Protections

Under the ADEA, you can’t be denied the opportunity to participate in your employer’s benefit plans because of your age. Employers also can’t reduce benefits based on age, unless the cost of providing the benefit increases with age. In these instances, the employer must incur the same cost for providing the benefits to older workers as it does for younger workers in order to comply with the ADEA.

For example, the cost of providing life insurance increases with age. An employer does not violate the ADEA if it spends the same amount to buy life insurance for younger and older workers, even though the younger workers receive greater coverage for the same premium.

Pursuing a Claim

You have the right to pursue a claim if you feel you are a victim of age discrimination. Judging older workers on the basis of age rather than abilities is wrong, and age discrimination can have devastating effects on the financial security of workers at the time and into retirement. It’s a hard case to bring and a hard one to win, though. It can also be emotionally and financially draining, and you may never get your day in court. Talk with your family, and take the uphill nature of the battle into account.

Before you file a complaint, consider negotiating with your employer first or using your company’s established grievance system. If your case is strong, you may be able to persuade your employer to settle with you. Research shows employers are inclined to settle out of court in cases where employees have solid evidence of age bias.

If you decide to move forward, it’s important to have a strong case. Make sure to document remarks by your managers and others that you perceive as discriminatory. Keep emails and any other documentation that helps your case. Then take these steps:

• File a charge with the federal Equal Employment Opportunity Commission (EEOC)

This step comes before you can file a lawsuit. Call the EEOC at 800-669-4000 or visitthe EEOC website for details on how to file a charge. If at all possible, file a charge within 180 days of the discriminatory action or when you first became aware of the discriminatory action, whichever occurred first. In some states, the time limit for filing a charge is extended to 300 days. However, filing within 180 days is recommended, to be on the safe side.  

The EEOC will notify the employer of the charge and will investigate it. If the EEOC determines that the charge has merit, it will attempt conciliation. This means the agency will try to persuade the employer to voluntarily eliminate and remedy the discrimination. If conciliation is not successful, the EEOC will decide whether to take legal action on behalf of the charging party. It is important to note that the EEOC does so in an extremely small percentage of the charges it receives.

The EEOC website offers more information on age discrimination. 

• Find a lawyer

Get in touch with an employment lawyer in your state to talk about the merits of your claim and what you need to do under state law. You can find employment lawyers through the National Employment Lawyers Association: www.nela.org.

• File your lawsuit

After the EEOC has terminated its proceedings on a charge, the agency will issue a “right to sue” letter. In age discrimination cases, you don’t need to wait for this letter before filing a case in federal court. You can file your lawsuit at any time from 60 days after you file with the EEOC and up to 90 days after you receive the “right to sue” letter.

The ADEA offers important workplace protections, but it doesn’t stop some employers from running afoul of the law’s requirements. Be aware of your rights, and then carefully consider the pros and cons of pursuing a case before you act.

For tools, information and other resources on work-related issues, visit www.aarp.org/workresources.

© April 2014

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