The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) is the federal law governing age discrimination.ADEA was enacted to promote the employment of older workers based on ability rather than age to prevent discrimination and help solve the problems that arise with an aging workforce.

This law applies to agencies, the federal government, state and local government and labor organizations with at least 25 members.The Age Discrimination in Employment Act functions similarly to other federal discrimination laws, like Title VII and the Americans with Disabilities Act (ADA).

The law also prohibits policies and practices that have a “disparate impact” on older workers. Policies or practices that have a disproportionately adverse impact on older workers are considered against the law unless the employer can prove their decision was based on a reasonable factor other than age.

The ADEA was amended in 1990 by the Older Workers Benefit Protection Act (OWBPA).This was meant to further safeguard older workers from involuntary or uninformed waiver of the employee's age discrimination protections under the ADEA.The need to ensure equal employment opportunities regardless of age continues to be an important public policy and civil rights concern.

The ADEA was passed by Congress in December 1967 and signed into law by President Lyndon B. Johnson that same month."The ADEA states:

“It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age . . . [or] (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age."

In 1980, the first full year for which the Equal Employment Opportunity Commission (EEOC) had enforcement authority for the ADEA, nearly one-fifth (18.6 percent) of the discrimination charges with the EEOC were age discrimination charges.

In 1986 the percentage was increased to 25.3 percent, and by 1992 a total of 27.4 percent of the charges filed with the EEOC constituted age discrimination charges.

Here are some examples of potentially unlawful age discrimination:

  • Employee didn't get hired because the employer wanted a younger-looking person to do the job.
  • Employee received a negative job evaluation because employee wasn’t "flexible" in taking on new projects.
  • Employee was fired because the boss wanted to keep younger workers that are paid less.
  • Employee was turned down for a promotion, which went to someone younger hired from outside the company because the boss said the company “needs new blood."
  • When company layoffs are announced, most of the persons laid off were older, while younger workers with less seniority and less on-the-job experience were retained.
  • Before the employeewas fired, the supervisor made age-related remarks about the employee, such as that employee were "over-the-hill," or "ancient."

Who Qualifies as an Employer Under the ADEA?

The Age Discrimination in Employment Act defines an “employer” as each “individual, partnership, association, labor organization, corporation, business trust, legal representative, or organized group of persons that is engaged in an industry affecting commerce (most every industry will affect commerce within the meaning of the ADEA); has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and have an employment relationship with the claimed employee.”

For businesses with less than 20 employees, employeesare still protected under the laws of some states, even though the employer is not covered by the federal ADEA.

Who Qualifies as an Employee Under the ADEA?

Whether an individual is an employee for purposes of the Age Discrimination in Employment Act depends mainly on the conduct of the worker. Very few people are expressly excluded from the definition of “employee” in the ADEA.Independent contractors are not employees within the meaning of the Age Discrimination in Employment Act and are not entitled to the ADEA's protections.

People elected to office in a state or a political subdivision of the state are excluded, as are the personal staff, policymaking appointees, and immediate advisers of the elected officer.

Under ADEA, there are special exceptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control.

The Age Discrimination in Employment Act protects employees that are at least 40 years old.

Other Federal Laws Affecting the ADEA

The Lilly Ledbetter Fair Pay Act, which was signed into law in January 2009, changed the requirement for when the statute of limitations begins for workers’ claims of pay discrimination under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.It said that declaring an unlawful employment practice occurs “not only when a discriminatory pay decision or practice is adopted but also when the employee becomes subject to the decision or practice, as well as each additional application of that decision or practice.” In other words, each time compensation is paid.

How the ADEA Protects You

An employer can’t deny an employee their rightfulpay or fringe benefits when the only reason is the employee’s age. Employers also can’t reduce benefits based on age, unless the cost of providing the benefit increases with age.

The law only allows an employer to reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Further, the employer has to pay the same coststo provide benefits to older workers as it does for younger workers. If it doesn’t, then it is not in compliance with the ADEA.

Employees cannot be grouped by their employer based on age in a way that will unfairly take away employment opportunities. Also, employers may not relegate all older workers to on specificlevel of employment within the business and then say they won’t promote the older employees.

The Age Discrimination in Employment Act prohibits an employer from refusing to hire, firing, or otherwise discriminating against an employee age 40 or older solely on the basis of age. Under the ADEA, employers can’t mention age or say that a certain age is preferred in job ads and recruiting materials.It is also uncertain but not explicitly illegal to ask on an application for the applicant’s date of birth or graduation date.

Nothing in the ADEA specifically prevents an employer from asking an applicant's age or date of birth, but 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 for a lawful purpose, rather than for a purpose prohibited by the ADEA.

Employers also are not allowed to put age limits on any employee training, get back at employees if that employee filesa charge of age discrimination or helps the government investigate charges on another person’s case. They also cannot force the employee to retire at a certain age (except for a few narrow exceptions).

Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993), states that an employer that makes adverse employment decisions on the basis of age is liable under ADEA, and Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422 (1985), states, “under the [ADEA], employers are to evaluate employees between the ages of 40 and 70 on their merits and not on their age.”

Plaintiffs that believe an employer intentionally disadvantaged the employee because of their age must prove the case under the disparate treatment model, which was developed in the Title VII context in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

H.R. 2852, is titled the “Protecting Older Workers Against Discrimination Act” (POWADA), the bill that amend the ADEA states that “an unlawful employment practice is established when a protected characteristic was a motivating factor for any employment practice, even though other factors also motivated the practice.”

The Supreme Courtalso has said that a corporation does not violate the ADEA when they present preferential solutions for older workers over younger ones, even when the younger employees are over the age of 40.

Apprenticeship programs, such as joint hard workcontrol apprenticeship programs, typically won't discriminate on the idea of a person's age. Age barriers in apprenticeship packages are valid only in the event that they fall inside certain restrained exceptions.

Nothing in the ADEA specifically prevents an organization from asking an applicant's age or birth date.

For a valid cause other than age, a company can additionally justify the hiring of a younger employee if the more youthful worker has much less experience and a decrease in income records.They can be willing to work in an identical capacity for a lower pay than the older employee.

Personnel covered by means of the act also have protection from harassment based solely on age when behavior is common and there is sufficient evidence to create surroundings or consequences in an unfavorable employment decision toward the included worker.

Pursuing a Claim

A protected person may file an age discrimination claim under both state and federal law or under just one.An employee has tofile a complaint based on federal law with the EEOCas well as a claim in the state with the appropriate state agency.

Before filing a complaint, an employee should consider negotiating with the employer first. They should also use the company’s established complaintssystem.If the case is strong, the employee may be able to persuade the employer to settle.

Make sure to document remarks by the managers and others that can be seenasbeing discriminatory.

Employees must keep emails and any other documentation that helps the case.

Find a lawyer

Get in touch with an employment lawyer in the state to talk about the merits of the employee's claim and what the employee needs to do under state law.

Employees can find employment lawyers through the National Employment Lawyers Association: www.nela.org.

File your lawsuit

After the EEOCterminates the actions on a charge, the agency will issue a “right to sue” letter.

In age discrimination cases, employees don’t need to wait for the letter before filing a case in federal court. An employee can file a lawsuit at any time from 60 days after the employee files with the EEOC and up to 90 days after the employee receives the “right to sue” letter.

Can I be turned down for a job because I am "overqualified?"

Despite the fact that extended age most often correlates with greater skills and experience in the workplace, a corporation isn't required to hire the most qualified or experienced individual for a selected function if the organization believes that the individual's abilities and enjoyment aren't an exceptional fit for the placement.

Even as a few accept as true the explanation that a worker is "overqualified," this is, in essence, a codeword for age discrimination, and an employee could show that the organization became preoccupied with the worker's age instead of a valid cause other than age.

However, it would be unlawful for the business enterprise to refuse to hire an experienced individual primarily based on the applicant's age, due to the fact older employees have more experience in and/orabilities than the location requires.Though the older employee may get bored and quit the activity after a short time.

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