The federal Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees and applicants who are at least 40 years old. Congress passed the ADEA in 1967 to address the difficulties older employees face in the workplace, including mandatory retirement cutoffs and discrimination in the hiring process. The ADEA outlaws age discrimination in every part of the employment relationship, but it does include a few limited exceptions, in recognition that advanced age may, in certain circumstances, affect a worker's ability to perform particular jobs effectively.
Most states also prohibit age discrimination, and some state laws are broader than the ADEA. For example, a state law might apply to smaller employers or protect employees of any age from age-based discrimination (not just those who are 40 or older).
Who Is Covered By the ADEA?
The ADEA covers private employers with at least 20 employees. It also applies to state and local governments (although state employees may not sue their employer for ADEA violations; only the Equal Employment Opportunity Commission (EEOC), the federal government agency that interprets and enforces laws prohibiting discrimination, may sue a state for discriminating against its employees based on age.
Employment agencies and labor organizations are also covered by the ADEA.
Age Discrimination Is Prohibited
Employers may not treat workers differently because of their age in any aspect of employment, from hiring to firing. Practices that might violate the ADEA include:
- requiring workers to retire once they reach a certain age
- treating older workers worse than younger workers by, for example, targeting them for layoffs or discipline
- giving younger workers higher pay, more favorable assignments, or more responsibilities than older workers because of age, and
- making decisions based on stereotypes about older people (for example, refusing to include older workers in workplace training programs because of a belief that they are unwilling or unable to learn new things).
The ADEA applies even if the "younger" workers who receive better treatment are also older than 40. For instance, an employer who treats a 60-year-old employee more favorably than a 70-year-old employee because of age has violated the ADEA, even though both workers are protected from age discrimination. The ADEA does not prohibit "reverse" discrimination, however: An employee who is under the age of 40 may not sue under the ADEA.
Harassment and retaliation are also prohibited by the ADEA.
Employers may use age as a basis for employment decisions in a few limited circumstances, including:
- An employer may use a bona fide seniority system as a basis for employment decisions, even if that results in more favorable treatment of younger workers. (This exception is rarely used, however, because older employees tend to have more seniority than younger workers, and therefore are typically favored by seniority systems.)
- An employer may discriminate on the basis of age if age is a bona fide occupational qualification (BFOQ) for the position -- that is, if the job, by its very nature, must be filled by an employee of a particular age (or younger than a particular age limit). To rely on this exception, the employer must be able to show that all or substantially all people who exceed the age limit would not be able to perform the job, or that some people who exceed the age limit would be unable to perform the job and testing each person individually would be impossible or highly impractical.
- State and local government may institute a mandatory retirement age of 55 or older for firefighters and law enforcement officers.
- Employees may require certain high-ranking executives or policy makers to retire or step down if they are at least 65 years old and other requirements are met.
An amendment to the ADEA, the Older Workers Benefit Protection Act (OWBPA) prohibits discrimination in benefits based on age. The OWBPA prohibits age discrimination in the provision of fringe benefits such as life insurance, health insurance, disability benefits, pensions, and retirement benefits, but allows employers to reduce benefits to older workers in limited circumstances, if justified by significant cost considerations.
The OWBPA also requires that an employee's waiver of the right to sue the employer for age discrimination (in a release or severance agreement, for example) is valid only if it is knowing and voluntary. The waiver must be part of a written agreement, and must give the employee something of value in exchange, among other things. The employee must have at least 21 days to consider the agreement, and seven days to revoke it after signing. If the waiver is requested in connection with an exit incentive program offered to a group of employees, the employer must provide certain statistical information about the employees who are and are not covered by the program.