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Your Rights Age Discrimination

Outten & Golden LLP

This page provides answers to the following questions:

1. What is age discrimination?

2. Which federal law(s) cover older workers?

3. Who is covered by age discrimination laws?

4. Which employers are covered by the law?

5. Are all older workers protected under the law?

6. What forms of discrimination or unfair treatment are illegal?

7. What are valid reasons for an employer to fire an older worker?

8. Is age ever a qualification for a certain job?

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

10. Can I be fired or not hired because a younger employee costs the company less?

11. Can I be fired to stop my pension benefits from vesting or because my health insurance is more costly?

12. Can an employer ask my age on a job application?

13. Can my employer make me retire?

14. Can I be asked to sign something waiving my legal rights?

15. Are governmental employees covered?

16. Who enforces the law?

17. What are the remedies available to me?

18. How can I file a complaint / how long do I have to file?

19. More Information About Age Discrimination

1. What is age discrimination?

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) is a federal law that protects individuals 40 years of age or older from employment discrimination based on age. 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, 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.

2. Which federal law(s) cover older workers?

The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.

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. For more information, see our page on state age discrimination laws.

3. Who is covered by age discrimination laws?

Workers who are 40 years of age or older are protected from employment discrimination based on age by the ADEA, if the employer regularly employs 20 or more employees.

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 can't 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.

4. Which employers are covered by the law?

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor unions, as well as to the federal government. The ADEA does not apply to elected officials or independent contractors. A number of court decisions have determined how to count the number of employees, so you may need to consult with an attorney to determine whether you are covered if your company employs approximately 20 employees.

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.

5. Are all older workers protected under the law?

No. The ADEA contains several exceptions:

  • 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.
  • 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. If these exceptions may apply to you, check with your personnel office or an attorney for details.
  • 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.

6. What forms of discrimination or unfair treatment are illegal?

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. As a result, the following practices are also illegal:

  • An employer cannot retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, 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" (BFOQ) reasonably necessary to the essence of the business (see question 5).
  • 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, 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.

7. What are valid reasons for an employer to fire an older worker?

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.

8. Is age ever a qualification for a certain job?

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 a worker's ability to do the job after a certain age is actually diminished.

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

It depends. The ADEA only prohibits discrimination based upon age. Although increased age most often correlates with more skills and experience in the workplace, an employer is not required to hire the most qualified or experienced person for a particular position if the company believes that person's skills and experience are not the best match for the position. While some believe the explanation that a worker is "overqualified" is in essence a codeword for age discrimination, an employee would need to prove that the employer was motivated by the worker's age, rather than a valid reason other than age.

However, 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.

10. Can I be fired or not hired because a younger employee costs the company less?

It depends. A valid reason other than age a company may use to justify the hiring of a younger worker is that the younger worker has less experience and a lower salary history, and may be willing to work in the same job for a lower salary than the older worker. If the company bases the hiring decision on this reason, it is not illegal.

However, an older worker cannot be terminated on the basis that the company either currently or in the near future will be required to pay retirement benefits or more costly insurance benefits (see the next section).

11. Can I be fired to stop my pension benefits from vesting or because my health insurance is more costly?

Firing workers in order to prevent them from earning their promised pensions is a technique some employers use to save money, but it is not legal. When the Older Workers Benefit Protection Act (OWBPA) was passed in 1990, it became clearly illegal for employers:

  • 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 terminate all older workers so that the pool of employees for insurance purposes is less costly to insure.

12. Can an employer ask my age on a job application?

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.

13. Can my employer make me retire?

As long as an employee is performing his or her job duties, generally the answer is no. If an employee can no longer perform his or her job duties, however, the employer is allowed to discharge that person.

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.

However, 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).

14. Can I be asked to sign something waiving my legal rights?

If asked by your employer, you may agree to waive your rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, requires that a waiver be knowing and voluntary. The law sets out specific minimum standards that must be met in order for a waiver to be considered valid.

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 will not be legally sufficient 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 consult an attorney before signing the waiver. While you do not have to actually consult with an attorney, and may choose not to, you must have been advised in writing to consult an attorney.
  • 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 few 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, the minimum requirements for a valid waiver are more extensive. 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. Prior to 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.

15. Are governmental employees covered?

Under the ADEA's language, which Congress passed in 1967, the law specifically protected state government employees as well as federal, private sector and union employees. This meant that, just like other workers, state employees could sue their employers -- the states for which they worked -- for age discrimination.

However, the U.S. Supreme Court in January of 2000 ruled that state employees were not allowed to use the ADEA's provisions which allow employees who successfully sued their employers to recover money for back wages and other monetary losses. In the case of Kimel v. Florida Board of Regents, (No. 98-791, decided January 11, 2000), the Court held that Congress did not have the authority to authorize certain kinds of age discrimination lawsuits against states.

Thus, 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.

16. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of job discrimination related to an individual's age in workplaces of 20 or more employees. Most states have their own agencies that enforce state laws against discrimination (see question 18 below).

17. What are the remedies available to me?

Victims of age discrimination can recover remedies to include:

  • back pay,
  • hiring,
  • promotion,
  • reinstatement,
  • front pay,
  • 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,
  • other actions that will make an individual "whole" (in the condition she or he would have been but for the discrimination).

Remedies also may include payment of:

  • attorneys' fees,
  • expert witness fees, and
  • court costs.

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 corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law. For more information, see our page on state age discrimination laws.

18. How can I file a complaint / How long do I have to file?

Select your state from the map below or from this list.


usa Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii Puerto Rico
 



19. More Information About Age Discrimination:

EEOC: Facts About Age Discrimination
EEOC Statistics on Charges of Age Discrimination

This page was updated on May 6, 2010



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