Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act (ADEA) is U.S. federal law enacted in 1967 that prohibits employment discrimination against individuals aged 40 and older. It applies to employers with 20 or more employees, including private companies, government agencies, labor unions, and employment agencies.

The ADEA protects workers from age-based discrimination in hiring, promotions, wages, layoffs, benefits, training, and other employment decisions. It also restricts employers from enforcing mandatory retirement policies, except in specific conditions.

Key Facts

• Who Is Protected:
  • Employees 40 years and older.
  • Applies to companies with 20+ employees, government agencies, and unions.
• Prohibited Practices:
  • Hiring and Firing - Employers cannot refuse to hire or terminate employees due to age.
  • Promotion and Training - Denying promotions or training opportunities based on age is illegal.
  • Compensation and Benefits - Employers cannot reduce wages or benefits because of age.
  • Harassment - Age-related jokes or offensive comments that create a hostile work environment are prohibited.
• Exceptions and Legal Defenses:
  • Employers can set age-related job requirements if they prove the age is a bona fide occupational qualification (BFOQ).
  • Some executive positions with high pensions may have mandatory retirement at 65.
• Enforcement and Penalties:
  • The Equal Employment Opportunity Commission (EEOC) enforces the ADEA.
  • Victims can file complaints and sue for back pay, reinstatement, and damages.
• State Laws:
  • Some state laws offer broader protections, covering smaller businesses or younger workers.

1. What does the ADEA do?

The Age Discrimination in Employment Act (ADEA) is a U.S. federal law that was enacted in 1967 to protect workers 40 years of age and older from discrimination in the workplace based on their age. The ADEA is designed to promote fairness and equality in employment opportunities for older workers, ensuring that they are unfairly treated because of their age. Here is a breakdown of what the ADEA does:

• ‍Prohibits Age Discrimination in Employment: The ADEA makes it illegal for employers to discriminate against individuals 40 years of age or older in any aspect of employment, including hiring and firing decisions, job assignments, promotions, compensation, training opportunities, and layoffs or downsizing.
• ‍Applies to Various Employment Practices: The ADEA applies to employers with 20 or more employees and covers a wide range of employment practices, including job advertisements and recruitment, hiring and firing practices, job promotions or demotions, salary and benefits disparities, and workplace harassment related to age. It ensures that age is not used as disqualifying factor for hiring or promotion or as a reason to terminate an employee who is older.
• ‍Exceptions to the ADEA: While the ADEA broadly prohibits age discrimination, there are certain exceptions where age may be a legitimate factor in decision-making, such as:
  • When age is a bona fide occupational qualification (BFOQ), meaning age is reasonably necessary to the operation of the business (for example mandatory retirement for certain roles in public safety or specific high-risk jobs).
  • Seniority systems that treat workers based on their length of service and provide older workers with benefits based on their seniority are allowed.
  • In cases where employee benefits may be tied to age, employers may offer benefits that differ based on age, provided these differences are not based on age discrimination.
• ‍Protects Against Age-Based Harassment: The ADEA also protects employees from harassment based on age. If an employee faces a hostile work environment due to age-based comments or mistreatment, they may have the right to file a claim.
• ‍Covers Retaliation Against Employees Who File Complaints: The ADEA also prohibits retaliation against workers who file complaints or participate in investigations or lawsuits related to age discrimination. This ensures that workers are not afraid to speak out against discriminatory practices.
• ‍Enforcement and Legal Remedies: The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADEA. Employees who believe they've been victims of age discrimination can file a complaint with the EEOC. If the EEOC finds evidence of discrimination, it can either:
  • Facilitate a settlement between the employee and employer, or
  • File a lawsuit on behalf of the employee in federal court.
  • Legal remedies for successful age discrimination claims may include: back pay for lost wages; reinstatement to the employee's previous job; compensatory damages for emotional distress; punitive damages in cases of willful violations; attorney's fees and court costs.
• ‍Timing of Claims: Employees who believe they have been discrimination against based on age must file a charge of discrimination with the EEOC within 180 days of the alleged discrimination. This period may be extended to 300 days if the charge is also covered by state or local anti-discrimination laws.

In summation, the Age Discrimination in Employment Act (ADEA) ensures that individuals 40 years of age or older are not discriminated against based on their age in employment decisions. The law covers a variety of employment practices, including hiring, firing, promotions, and compensation, and it provides legal recourse for employees who believe they’ve been unfairly treated due to their age. The ADEA aims to ensure equal treatment for older workers and to promote a fair, inclusive work environment.

2. Who is covered under the ADEA?

The Age Discrimination in Employment Act (ADEA) specifically protects individuals who are 40 years of age or older from discrimination based on age in employment. However, the law includes several specific provisions and criteria about who is covered under the ADEA. Here are the key details:

• Age Group Covered
  • Individuals 40 years of Age or Older: The ADEA applies to workers who are 40 years old or older, so employees under 40 are not protected by the ADEA against ages.
  • There is no Upper Age Limits: The ADEA does not set an upper age limit, so even individuals well into their senior years (such as in their 60s or 70s) are protected by the law as long they are 40 or older.
• Employer Covered
  • Private Employers: The ADEA applies to private employers with 20 or more employees. These employers are prohibited from discriminating against workers who are 40 or older based on age in hiring, firing, promotions, pay, and other employment practices.
  • State and Local Governments: The ADEA also applies to state and local government employers, regardless of the number of employees. The law ensures that workers in these sectors are protected against age discrimination.
  • Federal Government: The ADEA covers employees of the federal government, but federal employees may have to use different procedures, such as the Equal Employment Opportunity (EEO) process, rather than filing directly with the Equal Employment Opportunity Commission (EEOC).
  • Labor Unions: The ADEA also applies to labor unions with 20 or more members that represent employees covered by the law. The unions cannot discriminate against older workers in their membership or collective bargaining activities.
  • Employment Agencies: The ADEA prohibits employment agencies from discriminating based on age in their referral and placement services for jobs. Agencies cannot refuse to refer older workers to employers or exclude them from certain job opportunities.
• Who Is Not Covered
  • Employees under 40: The ADEA specifically protects individuals aged 40 and over. Employees under 40 are not protected by the ADEA, though other laws, such as state or local anti-discrimination laws, might offer similar protections in some jurisdictions.
  • Small Employers: The ADEA does not apply to employers with fewer than 20 employees, though some states or local jurisdictions may have laws that protect against age discrimination for workers in smaller businesses.
• Job Applicants and Employees
  • Job Applicants: The ADEA applies not only to employees but also to job applicants. An employer cannot discriminate against someone in the hiring process because they are 40 or older.
  • Current Employees: The law also covers individuals who are already employed and protects them from discrimination related to age in terms of promotions, compensation, layoffs, or terminations.
• Exceptions
  • BFOQs: While the ADEA applies broadly, there are some exceptions and bona fide occupational qualifications (BFOQs) where age can be a legitimate factor in employment decisions. For example, in certain jobs where age is a necessary requirement (such as actors for specific age roles or certain jobs in law enforcement or public safety), the employer may set an age limit or preference.
  • Mandatory Retirement: In rare cases, mandatory retirement ages may be permissible for specific roles (such as for pilots or high-ranking government officials) if they are justified as a BFOQ.
• Additional Coverage
  • Retaliation Protection: The ADEA also protects individuals from retaliation if they file a complaint, participate in an investigation, or oppose discriminatory practices related to age. For example, if an older worker files an age discrimination claim, it is illegal for the employer to retaliate by firing, demoting, or otherwise punishing the employee.
  • Harassment: The ADEA also protects employees from age-based harassment in the workplace. If an employee is subjected to hostile or offensive behaviour due to their age, they can file a complaint under the ADEA.

Ultimately, the Age Discrimination in Employment Act (ADEA) covers employees and job applicants who are 40 years of age or older. It applies to private employers with 20 or more employees, state and local governments, federal employees, labor unions, and employment agencies. The ADEA ensures that age is not a factor in employment decisions like hiring, firing, promotion, or pay. However, it does not apply to employers with fewer than 20 employees and does not protect workers under the age of 40. The ADEA also provides protections against retaliation and harassment based on age.

3. Can an employer ask for my age during an interview?

No, an employer should not ask for your age during a job interview, as it can be considered a form of age discrimination under the Age Discrimination in Employment Act (ADEA). The ADEA specifically protects individuals who are 40 years old or older from discrimination based on age, and employers must avoid making decisions or asking questions that could imply age-based bias.

Why Employers Should Not Ask for Your Age

1. Age Discrimination Concerns: Asking about your age directly during an interview can create the perception that the employer is making hiring decisions based on age, which is illegal if it leads to discrimination against applicants who are 40 or older. Even if an employer does not intend to discriminate, such questions can lead to unintentional bias in hiring decisions.
2. Relevant Information: Your age is typically irrelevant to your ability to perform the job, and employers should focus on your skills, experience, and qualifications instead.

While direct questions about age are prohibited, there are a few indirect ways employers may obtain age-related information in a manner that is not discriminatory or violating the law:

• Can ask: Employers may ask questions like:
  • "Are you legally authorized to work in the United States?" (This can determine whether you are eligible for employment but does not directly address age.)
  • "Can you provide proof of your qualifications or experience?" (This might indirectly reveal age through educational or career background, but it is focused on qualifications, not age.)
• Cannot ask: Employers should not ask questions such as:
  • "How old are you?"
  • "When were you born?"
  • "What year did you graduate high school or college?" (This could reveal your age and lead to discrimination.)
  • "What is your date of birth?"

Although employers cannot ask directly about your age, there might be situations where an employer can infer your age, such as:

• Educational background: If your resume includes graduation years from high school or college, an employer might guess your age. However, this should not influence their decision to hire you.
• Work history: If you've had a long career, an employer might assume you're older, but this alone cannot be used to discriminate against you.

Exceptions Where Age Information May Be Required

1. Mandatory Age Requirements: In some industries or jobs, age restrictions or requirements may apply due to safety regulations or laws (such as for pilots, certain government jobs, or labor laws related to minors). In such cases, employers may legally inquire about age.
2. Voluntary Self-Identification: In some cases, employers might ask for age-related information for equal opportunity monitoring (such as diversity initiatives) or to comply with government regulations. However, this must be voluntary and not used in hiring decisions. Employers typically ask this on separate forms that are not part of the job application or interview process.

What Happens if You Face Age Discrimination

If you believe you’ve been asked an illegal question or that age discrimination has occurred during the interview process, you have legal protections:

• File a complaint with the EEOC: If you believe your rights under the Age Discrimination in Employment Act (ADEA) have been violated, you can file a complaint with the Equal Employment Opportunity Commission (EEOC).
• State-level protection: Many states also have their own anti-discrimination laws that provide additional protections against age discrimination.

In general, an employer should not ask for your age during a job interview as it can be considered age discrimination. Employers are prohibited from making hiring decisions based on age under the Age Discrimination in Employment Act (ADEA). While certain age-related questions might be permissible in specific situations (for example, when age is a legitimate qualification for the job), asking about your age directly is not appropriate. If you are asked an inappropriate question, you can politely decline to answer or redirect the conversation to focus on your qualifications.

4. Are there exceptions to the ADEA?

Yes, there are several exceptions to the Age Discrimination in Employment Act (ADEA). While the ADEA broadly protects individuals 40 years of age or older from discrimination based on age, the law does allow certain exceptions or bona fide occupational qualifications (BFOQs) where age can be considered a legitimate factor in employment decisions. These exceptions are designed to balance the goal of preventing discrimination with the practical needs of certain jobs or industries. The main exceptions to the ADEA include:

1. ‍Bona Fide Occupational Qualification (BFOQ)

The ADEA permits age-based discrimination if age is a bona fide occupational qualification (BFOQ), meaning age is a necessary requirement for the job. A BFOQ must be reasonable and essential for the performance of the job. This exception is narrowly construed and typically applies to jobs where age is relevant to the safety, performance, or nature of the work. However, the BFOQ exception is very limited and usually involves situations where age is essential to the performance of the job, rather than a simple preference.

• Examples of BFOQs include:
  • Actors or performers who must be a certain age to portray a specific role (e.g., a young child or an elderly person).
  • Airline pilots or bus drivers may have age restrictions due to safety regulations or the physical demands of the job. For example, commercial airline pilots must retire at age 65 to ensure the safety of passengers and comply with Federal Aviation Administration (FAA) regulations.
  • Police officers or firefighters in some jurisdictions may have age limits due to the physical demands of the job.

2. ‍Seniority Systems

Seniority systems that treat employees based on their length of service are allowed under the ADEA, even if this results in more favorable treatment for older employees. These systems are not considered discriminatory, as long as the seniority system is bona fide (genuine) and applies to all employees regardless of age.

• Example: If a company uses a seniority system to determine promotions or layoffs, and this system results in older workers being given priority due to their longer tenure, it is generally allowed under the ADEA.

3. ‍Employee Benefit Plans

The ADEA does not prohibit employers from offering different benefits based on age if the difference is justified by costs of providing benefits or the actuarial basis used to calculate benefits. As long as the difference in benefits is based on reasonable factors (such as insurance premiums increasing with age), it is allowed.

• Examples of Employee Benefit Plans include:
  • An employer can provide healthcare benefits that vary based on age, provided that the differences are based on actuarial data, and they do not result in discrimination based on age in other employment decisions (such as hiring, firing).
  • Older workers may receive different retirement benefits under a pension plan, but these must be consistent with rules that allow for reasonable distinctions based on age.

4. ‍Voluntary Retirement Plans

The ADEA allows for voluntary retirement programs that provide certain benefits to employees who retire early. However, these programs cannot coerce employees into retiring, and the incentives for early retirement must be voluntary. The Older Workers Benefit Protection Act (OWBPA), which amends the ADEA, establishes rules for early retirement incentives to ensure that they are truly voluntary and do not pressure employees to leave. For example:

• Employees must be given adequate time to consider any early retirement offer (at least 21 days to review the offer and 7 days to revoke acceptance).
• The early retirement offer must be clearly explained, including the terms and any consequences.

5. ‍Public Safety Jobs (Limited Exception)

Some public safety jobs, such as law enforcement or firefighting, may have mandatory retirement ages due to the physical demands of the job and safety concerns. In these cases, a retirement age requirement may be justified by the nature of the work. Note that these exceptions are also limited and must meet strict criteria to be enforceable.

• Example: Some jurisdictions may impose mandatory retirement ages for police officers or firefighters, often due to concerns about physical fitness and the ability to perform the demanding tasks required by these positions.

6. ‍Age Discrimination in Employment Act (ADEA) for Employers with Fewer than 20 Employees

The ADEA only applies to employers with 20 or more employees. If an employer has fewer than 20 employees, the ADEA does not apply, and employees cannot file an ADEA claim in such cases. However, some state laws may provide greater protection against age discrimination in smaller businesses, so it’s important to check local regulations.

Summary of Key Exceptions

• Bona Fide Occupational Qualifications (BFOQs): Age may be a legitimate requirement for certain jobs, like pilots or performers.
• Seniority Systems: Seniority-based systems that offer benefits to older employees are allowed, as long as they are based on legitimate factors.
• Employee Benefit Plans: Employers can offer different benefits to employees based on age if the differences are justified by cost or actuarial reasons.
• Voluntary Retirement Plans: Employers can offer voluntary retirement incentives, but these must be structured carefully to avoid coercion.
• Public Safety Jobs: Certain public safety jobs (like police officers and firefighters) may have mandatory retirement ages due to the nature of the work.
• Small Employers: Employers with fewer than 20 employees are not covered by the ADEA, though state laws may provide protections.

While the ADEA provides broad protection for workers aged 40 and older, these exceptions allow for some age-based decisions in very specific situations, particularly where age is critical to the role or the nature of the job requires it. However, such exceptions are narrow and typically subject to strict legal scrutiny.

5. How do I file a complaint under the ADEA?

If you believe you have been the victim of age discrimination at work or during a job application process, you can file a complaint under the Age Discrimination in Employment Act (ADEA) with the Equal Employment Opportunity Commission (EEOC). Here's a guide to help you on how to file a complaint:

File a Charge with the EEOC

To begin the process of filing a complaint under the ADEA, you must file a charge of discrimination with the EEOC. A charge is essentially a formal statement of your complaint that initiates the investigation. Steps to file the charge encompass:

• Contact the EEOC: You can file a charge of discrimination with the EEOC online, by mail, or by phone. You do not need an attorney to file a charge.
• File within the deadline: You must file your charge within 180 days of the alleged discriminatory act. However, if there is a state or local anti-discrimination law that also applies to your case, this time limit may be extended to 300 days. Make sure you file within the appropriate timeframe.
• Prepare the necessary information: When you file a charge, you’ll need to provide:
  • Your name, address, and phone number
  • The employer’s name, address, and phone number
  • A brief description of the discrimination, including the dates and circumstances that you believe were discriminatory.
• Submit the charge: You can file the charge:
  • Online: Visit the EEOC’s website to file a charge electronically.
  • By mail: Download the charge form from the EEOC website, fill it out, and mail it to the appropriate EEOC office.
  • By phone: Contact your local EEOC office to discuss how to file a charge. The EEOC can help guide you through the process.
• EEOC intake: After you file, the EEOC will assign an investigator to review your charge and may contact you for more information.

What Happens After Filing the Charge

After you file your charge, the EEOC will begin its investigation into your complaint. Here’s what typically happens next:

• Investigation: The EEOC will investigate the claims you’ve made to determine if there is enough evidence of age discrimination. This process can take several months.
• Possible Conciliation: In some cases, the EEOC will attempt to mediate or conciliate between you and your employer to resolve the issue without going to court. This is typically a voluntary process, and both parties can agree to a settlement.
• No Finding of Discrimination: If the EEOC determines that there is no evidence of discrimination, they will issue a Notice of Right to Sue, which means you can file a lawsuit in federal court if you wish.
• Finding of Discrimination: If the EEOC finds that there is evidence of discrimination, it will attempt to resolve the issue through conciliation. If that’s unsuccessful, the EEOC can file a lawsuit on your behalf, or they will issue a Notice of Right to Sue, giving you the right to file a lawsuit independently.

Possible Outcomes of the EEOC Investigation

• No Violation: If the EEOC finds no evidence of age discrimination, they will issue a Notice of Right to Sue, which gives you the option to file a lawsuit in federal court.
• Violation Found: If the EEOC determines that age discrimination occurred, they will try to resolve the matter through conciliation. If that doesn't work, the EEOC may file a lawsuit in court. However, the EEOC does not always take on the case themselves, and you may be given a Right to Sue letter, allowing you to pursue legal action independently.
• Settlement or Conciliation: Sometimes, the case can be settled outside of court, with both parties agreeing on a resolution, such as financial compensation, reinstatement of a job, or policy changes at the company.

File a Lawsuit After Receiving the Right to Sue Notice

If you receive a Notice of Right to Sue from the EEOC, it means you have the right to take your case to federal court. The Notice will also indicate a specific time frame (usually 90 days) in which you must file a lawsuit. If you do not file within this timeframe, you may lose your right to sue.

Additional Resources

• EEOC Website: The EEOC’s website provides forms, contact information, and additional details on how to file a charge of discrimination.
• State Agencies: Many states have their own anti-discrimination agencies, and filing a charge with them may extend the time you have to file (up to 300 days). Check with your state’s agency for guidance.
• Local Support Groups: Some organizations and advocacy groups offer support to older workers facing age discrimination and may provide additional resources for filing a complaint.

Overall, to file a complaint under the Age Discrimination in Employment Act (ADEA), you must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). You can do this online, by phone, or by mail. Be sure to file within 180 days (or 300 days with a state or local law) of the alleged discriminatory act. After filing, the EEOC will investigate the claim and may attempt to resolve the issue through conciliation. If no resolution is reached, you will receive a Notice of Right to Sue, allowing you to take the case to federal court. Consulting an attorney can be helpful throughout this process, especially if the matter proceeds to litigation.