Elderly and youthful employees sometimes experience age discrimination in the workplace. Ageism is stereotyping or discriminating against individuals or groups because of their age. Employers are generally not allowed to hire, fire, or promote employees, nor decide an employee’s compensation based on their age. However, it can be difficult to determine whether an employer’s actions were motivated by age discrimination, or by a genuine belief that another person can perform a particular job better. States have extensive complaint and fact-finding procedures to help employees determine when they have been victims of age discrimination and to assert their rights. Read below to learn more about age discrimination and how the law protects you…
If you are 40 years of age or older, and you have been harmed by a decision affecting your employment, you may have suffered unlawful age discrimination. The Age Discrimination in Employment Act (ADEA), discussed below at number 2, is a federal law that protects individuals 40 years of age or older from age discrimination in the workplace. Here are some examples of potentially unlawful age discrimination:
- You didn’t get hired because the employer wanted a younger-looking person to do the job.
- You received a negative job evaluation because you weren’t “flexible” in taking on new projects.
- You were fired because your boss wanted to keep younger workers who are paid less.
- You were turned down for a promotion, which went to someone younger hired from outside the company, because the boss says 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 kept on.
- Before you were fired, your supervisor made age-related remarks about you, for example calling you such as that you were “over-the-hill,” or “ancient.”
If any of these things have happened to you on the job, you may have suffered age discrimination.
While an older worker is also covered by several other workplace laws, these are the main federal laws which specifically protect older workers against discrimination based on age. Age discrimination may be accompanied by other forms of illegal discrimination as well, such as sex, race, or disability discrimination.
The laws of most states also make it illegal to discriminate on the basis of age.
Many states also make it illegal to discriminate on the basis of age; however, the minimum number of employees needed to bring a claim varies. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
If two workers are both protected by the ADEA, an employer still may not use age as the basis for an employment decision. For example, a company cannot hire a 45-year-old over a 62-year-old simply because of age; if the company hired the younger employee due to her age, the 62-year-old employee would still have a claim.
The ADEA’s protections apply to both employees and job applicants. If you are a current employee over 40 and are fired or not promoted due to age, you are protected. If you are not hired due to age, you are also protected.
In the recent discrimination case, General Dynamics Land Systems, Inc v. Cline, No. 02-1080, 540 U.S. (2004) the company and its union negotiated a collective bargaining agreement that offered retirees health benefits only to those employees who were at least 50 years of age at the time of the agreement. A group of employees who were in their forties sued, claiming that the age requirement constituted illegal age discrimination in violation of the ADEA. The Supreme Court held that the ADEA only prohibits discrimination in favor of younger employees and does not address discrimination that favors older workers.
If your workplace has fewer than 20 employees, you may still be protected under the laws of some states, even though your employer is not covered by the federal ADEA. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
While the ADEA states that state employees are covered under its protections, recent U.S. Supreme Court decisions have limited the ability of state employees to sue their employers for money damages (see question 15). If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.
- Executives or other upper level decision-making positions can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
- When public safety is in danger, the ADEA makes an exception to the involuntary retirement rule. For example, pilots and bus drivers are included in the exception along with special exceptions for police officers fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. If these exceptions may apply to you, check with your personnel office or an attorney for details.
- The ADEA also makes an exception when age is an essential part of a particular job — also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ.
It is important to remember that while your employer may be prohibited from enforcing involuntary retirement, they may incentivize or offer you benefits for retiring voluntarily.
- An employer cannot retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination claim, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
- An employer may not include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a “bona fide occupational qualification,” meaning a person of that age is necessary to the business (see question 6).
- Apprenticeship programs, including joint labor-management apprenticeship programs, generally may not discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain limited exceptions; consult with an attorney if this may affect you.
- Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, b because asking these questions may discourage 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.
- An employer cannot force you to retire at a certain age (except for a few narrow exceptions).
Under the ADEA, there has to be a valid reason — not related to age — for all employment decisions. Examples of valid reasons would be poor job performance by the employee or an employer’s economic trouble. In the case of layoffs, a company cannot use age as the basis for determining who is laid off and who is kept on. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, there may be a basis for an ADEA complaint or lawsuit, especially if the employer has hired younger workers to take the places of workers over 40.
Yes, in very limited circumstances. The ADEA makes an exception when age is an essential part of a particular job — also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ. However, an employer who sets age limits on a particular job must be able to prove the limit is required because of the worker’s inability to do the job after a certain age is actually diminished.
Additionally, it would be unlawful for the company to refuse to hire an experienced individual based on the assumption, solely based on the applicant’s age and lacking proof, that because they have more experience and/or skills than the position requires, the older employee might become bored and leave the job after only a short time. This is an example of the kinds of ageist stereotypes that can cause employers to discriminate against older workers.
On the other hand, an older worker cannot be terminated because of the upcoming retirement or more costly insurance benefits, as further explained in question 13.
- To use an employee’s age as the basis for discrimination in benefits, and
- To target older workers for their staff cutting programs on the basis that benefits were too costly.
An employer cannot terminate an older worker on the basis that benefits are too costly. The company must follow the “equal benefits or equal cost” rule, by providing either equal benefits to older and younger workers, or paying the same benefit costs for all employees. 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. In other words, if an employer pays only $100 in monthly premiums for each worker, this policy does not violate the ADEA even if it causes the older worker to make a higher employee contribution or to have lesser benefits than a younger worker.
An employer could not, however, refuse to pay for the health benefits of all workers over 55 on the grounds that “it costs too much,” if the employer pays the benefits of younger workers, or terminates all older workers so that the pool of employees for insurance purposes is less costly to insure.
Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, 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.
As mentioned above, the ADEA does have special exemptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. Executives or others “in high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more. If these exceptions may apply to you, check with your personnel office or an attorney for details.
In an effort to save the company money or to reduce the size of the workforce without resorting to involuntary layoffs, employers will often offer older employees early retirement. Offering voluntary early retirement does not violate the ADEA. In exchange for increased retirement benefits or severance, employers may ask employees to waive their rights under the ADEA. In order to be legally effective, the waiver you are asked to sign must follow certain requirements (see next section).
Among other requirements, a valid ADEA waiver:
- Must be in writing and be understandable. This means that if you only had a conversation with your boss about what will happen when you leave the company, without anything being put in writing, you have not waived your right to pursue an ADEA claim.
- Must specifically refer to ADEA rights or claims. Some companies use what is called a “general release,” where you agree to waive any and all claims against the company without the types of claims being specified. While this may be valid in other situations, it is not enough to waive your ADEA claims.
- May not waive rights or claims that may arise in the future. This means you can agree to waive your right to sue for something that already happened, but you cannot waive your right to sue for something that hasn’t happened yet. For example, you can waive your right to file a claim over your termination, but if a few years later, your employer reduces your retirement benefits, you still may be able to file a claim over that.
- Must be in exchange for valuable consideration. This is a legal term that means that you must receive something in exchange for signing that you would not have received otherwise, like a larger severance package or additional benefits. If you were entitled to certain benefits anyway, and did not receive anything additional in return for signing a waiver, it is not valid under the ADEA.
- Must advise you in writing to speak with an attorney before signing the waiver. While you do not have to actually have an attorney, and may choose not to, you must have been advised in writing to speak with one.
- Must provide you with at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. If you are presented with a waiver that you must sign immediately without the time to consider it properly and/or consult with an attorney, you cannot lose your rights under the ADEA. If you have signed something that you were only given a few days or hours to consider, and you suspect that you are a victim of age discrimination, you should consult with an attorney to see whether your waiver is valid or not.
In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, there are more requirements for the waiver to be valid. For example, if the offer is being made to a group or class of employees, your employer must inform you in writing how the class of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made. This allows you to have relevant information, that you might not know otherwise, about how the offer affects older workers compared to other workers in the company. You should consult with an attorney to determine whether the waiver you have signed has complied with the more extensive requirements.
The U.S. Supreme Court has also ruled that you may challenge the validity of the waiver without first giving back the money you received in exchange for the waiver. Before this decision, based on the law generally applicable to other kinds of contracts, if you had accepted the money, you were considered to have “ratified” the waiver, or to have consented to the company’s violation of the law in exchange for the money you received. This prevented older workers, who may have already spent all or part of the money before they learned that the waiver was illegal, from being able to challenge illegal waivers under the OWBPA.
So, if you are a state employee, the ADEA no longer protects you from age discrimination. However, you may be protected by the laws of the very state that is discriminating against you. If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.
Claims of unlawful age discrimination can be difficult to prove. An employer can only be held liable for age discrimination if the employee can show that her or she was directly or indirectly discriminated against because of age. It does not have to be intentional. In Gross v. FBL. Financial Services, Inc., No. 08-441, 557 U.S., (2009) the U.S. Supreme Court decided if there needs to be direct evidence of discrimination in a suit filed under the ADEA. In short, the answer is no. Instead, the plaintiff must prove that “but for” the employee’s age, the employer would not have taken the discriminatory action.
- back pay(pay from termination to trial date),
- front pay (all earnings the employee would have received if not terminated),
- liquidated damages (up to twice the amount of back pay) may be awarded in the event of a “willful” violation, if the employee proves that employer knowingly violated the ADEA or acted in “reckless disregard” of its provisions,
- the amount agreed on in your employment contract,
- other actions that put the employee in the position he or she would have been in had they not been discriminated against. For example, if you are alleging that you were fired because of age discrimination, you may seek the pay you would have received if you weren’t wrongfully terminated or even the job or benefits you would have had if you had not been terminated..
Remedies also may include payment of:
- attorneys’ fees,
- expert witness fees, and
- court costs.
Your state law may allow for more or different remedies than federal law. An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
The employer also may be required to take actions to correct the discrimination and keep it from happening again. The employer must also stop any discriminatory practices.
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