Age Discrimination

In 1967, Congress passed the Age Discrimination in Employment Act (the “ADEA”). Given the steady rise in the number of older workers and in acknowledgement of their productivity and growing affluence, Congress passed the Act in order to promote their employment, prohibit the setting of arbitrary age limits for retirement, and to protect older workers from a high incidence of unemployment and arbitrary discrimination.

Under the ADEA an employer with 20 or more employees on the payroll for each working day in each of twenty or more calendar weeks may not discriminate against employees who are age 40 or older. This means that an employer cannot treat an employee who is 40 or over better than anyone substantially younger with regard to hiring, firing, pay, promotions, job assignments, benefits and any other term or condition of employment. In addition, the law prohibits employer practices that while seemingly neutral as to age, have the effect of harming older workers more than younger workers. This is called a disparate impact claim. An employer can defend against such a claim if it can be shown that the practice was based on a reasonable factor other than age.

Like claims under Title VII and the ADA, the ADEA also protects employees from retaliation for opposing practices that discriminate based on age and from retaliation for filing charges concerning or participating in an investigation or legal proceeding under the ADEA.

Older Workers Benefit Protection Act

In 1990, the ADEA was amended by the Older Workers Benefit Protection Act to prohibit the denial of benefits to older workers. Among other things, this Act also provides protection for workers that are asked to settle and release age discrimination claims. In such a case, an employer seeking a waiver and release of rights under the ADEA is required to:

  • Make the waiver clear and understandable by referencing the ADEA;
  • Confirm that no rights are waived in the future;
  • Provide for consideration in return for the waiver and release;
  • Advise the employee of the right to consult with an attorney;
  • Offer a minimum of 21 days within which to consider the agreement; and
  • Provide a period of at least 7 days after signature to revoke the agreement.

If the waiver s requested in connection with a reduction in force or RIF of a group or class of employees, then an employer is required to provide 45 days for consideration of the agreement. It must also inform the employee about the RIF by providing the following information:

  • The class, unit, or group of individuals covered;
  • The factors considered in determining the group covered;
  • Any time limits applicable to the RIF;
  • The job titles and ages of all individuals eligible or selected for the RIF; and
  • The ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the RIF.
Remedies

If employers have a sufficient number of employees to be covered under the ADEA, then they can be liable for back pay or the amount of pay loss due to the discrimination, front pay or the amount of pay expected to be lost in the future plus liquidated damages or double the back pay award. Employees can also obtain reinstatement to jobs or positions lost, an award of a job or position denied, as well as attorneys’ fees incurred in bringing the claims.

Agency Involvement

The ADEA appoints the Equal Employment Opportunity Commission as the federal agency in charge of investigating claims of discrimination based on age and employees are required to file charges of discrimination with the EEOC within a limited amount of time after learning of or experiencing discrimination; in some cases, within as little as 180 days.

Although this is just an overview of age discrimination, if you have concerns or have additional questions, we can help guide you and, if necessary, represent you before the EEOC or in Court. To further discuss your situation, you can call us toll free at 1-855-774-3675, send us an e-mail, or fill out a consultation request form and we will contact as soon as possible.