Age Discrimination in the Workplace: Everything You Need to Know
Age discrimination in the workplace is prohibited by the Age Discrimination in Employment Act. This is a federal law that protects discrimination because of age4 min read
Age discrimination in the workplace is prohibited by the Age Discrimination in Employment Act. This is a federal law that protects people who are at least 40 years old from employment discrimination because of their age. The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of age discrimination in workplaces with 20 or more employees.
Age Discrimination in Employment Act (ADEA): Which Employers Does This Law Apply?
Any business with 20 or more employees, including state and local governments, have to adhere to ADEA requirements. ADEA does not apply to independent contractors or elected officials. In some states, there are laws, which protect employees in workplaces that have fewer than 20 employees, even if the employer is not subject to ADEA regulations.
In cases where an employer has provided an older worker with preferential treatment over younger ones, however, the Supreme Court determined that this does not violate the ADEA even if the younger workers are older than 40 years of age.
Exceptions of ADEA
There are some exceptions to ADEA legislation, such as:
Tenured university faculty, certain federal employees in positions related to air traffic control and law enforcement, fire and police personnel.
Those in "high policy-making positions," such as executives, may be required to retire at the age of 65, but only if they'll get annual retirement pension benefits in excess of $44,000.
When age is a critical factor in a particular job – this is referred to as "bona fide occupational qualification," or BFOQ.
Signs of Age Discrimination
The most noticeable signs of age discrimination are biased comments, such as being called "old."
Other signs are:
Younger employees being treated differently from older ones under the same circumstances
Older employees being laid off in greater numbers than younger ones
Older employees being disciplined more often and more severely than younger ones, or for behavior for which younger employees aren't disciplined
Older employees being passed over for promotion by younger employees who are less qualified
Forms of Discrimination
Employers may not include age limitations or age preferences, with the exception of BFOQ, job postings and/or advertisements.
Inquiring about an applicant's birth date or age is only allowed if the request is made for a legal reason other than for a purpose that is prohibited by ADEA regulations.
Older employees cannot be terminated solely because the employer will be required to pay retirement benefits or more costly insurance benefits currently or in the future.
Employers are not allowed to retaliate against employees who are:
Fighting against their employment practices, which discriminate based on age
Filing an age discrimination charge
Testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA
The ADEA Waiver and Its Requirements
Employees may waive rights or claims under the ADEA if the waiver is:
Done knowingly and voluntarily
In writing and easily understood
Refers specifically to ADEA rights or claims
Does not refer to possible future rights or claims
Given in exchange for valuable consideration
Includes written advice to employee to consult an attorney before signing the waiver
Provides employee with at least seven days to revoke the agreement after signing the waiver and at least 21 days to consider the agreement before signing
What to Do When Being Exposed to Age Discrimination?
You should keep records of when anyone calls you old, asks about retirement plans, mentions that the company would like a younger image or implies that your best days are behind you.
These may be considered direct evidence of age discrimination in the workplace, and you should maintain documentation listing names – including any witnesses, dates, times, and locations.
Anyone who believes he or she is being discriminated against because of their age should first report harassment to the employer. If the harassment persists, or the employer does not remedy the situation, you may go to the EEOC or a state agency to file a discrimination charge.
If you didn't do anything about it, or you missed filing the harassment charges, you may lose the right to sue for age discrimination. Filing with the EEOC may be either 180 days or 300 days from the discrimination date, dependent on the state you live in.
A "right to sue" letter will be issued after the EEOC terminates its proceedings on a charge. Filing of the lawsuit can be done anytime from 60 days after filing with the EEOC and up to 90 days after receiving the "right to sue" letter.
You may want to seek advice from an employment attorney if you feel that you have been laid off because of your age. An employment lawyer may be able to negotiate a better severance package for you and protect rights of which you may not be aware.
If you need help with a possible age discrimination case, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.