Age Discrimination in the Workplace

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 To?

Any business with 20 or more employess, 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 7 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.

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