Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employers from discriminating against employees, or job candidates, on the basis of age. This law covers workers who are 40 years of age and older. An employer must have at least 20 workers to be covered by this law. The Equal Employment Opportunity Commission (EEOC) enforces the Age Discrimination in Employment Act.
According to the Equal Employment Opportunity Commission (EEOC), the Age Discrimination in Employment Act makes it unlawful for an employer to make employment-related decisions based on an employee's or a prospective employee's age. Here are several ways in which workers age 40 and above are covered:
• An employer can't make hiring decisions based on an applicant's age and he or she can't discriminate based on age when recruiting job candidates, advertising for a job or testing applicants.
• An employer can't fire a worker because of his age.
• An employer can't use age to classify, segregate or limit an employee if this will negatively affect the employee's status or deprive him or her of opportunities.
• An employer can't use age to determine an employee's pay.
• An employer can't deny benefits to an employee because of the employee's age. In some circumstances, however, the employer may provide reduced benefits to older workers if the cost of providing those reduced benefits matches the cost of providing benefits to a younger worker. In other words, the cost of providing the benefits to older workers and younger workers must be the same.
• An employee may take age into account when making an employment-related decision only if it is in regard to an authentic qualification necessary for the business's operation.

Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination.
It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.
Age Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Age Discrimination & Harassment
It is unlawful to harass a person because of his or her age.
Harassment can include, for example, offensive remarks about a person's age. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Age Discrimination & Employment Policies/Practices
An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age (RFOA).
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
It is also unlawful to 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.
The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. ADEA protections include:
• Apprenticeship Programs
It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.
• Job Notices and Advertisements
The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.
• Pre-Employment Inquiries
The ADEA does not specifically prohibit 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. If the information is needed for a lawful purpose, it can be obtained after the employee is hired.
• Benefits
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs might create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is no less than the cost of providing benefits to younger workers.
Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.
• Waivers of ADEA Rights
An employer may ask an employee to waive his/her rights or claims under the ADEA. Such waivers are common in settling ADEA discrimination claims or in connection with exit incentive or other employment termination programs. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must: o be in writing and be understandable; o specifically refer to ADEA rights or claims; o not waive rights or claims that may arise in the future; o be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled; o advise the individual in writing to consult an attorney before signing the waiver; and o provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.
If an employer requests an ADEA waiver in connection with an exit incentive or other employment termination program, the minimum requirements for a valid waiver are more extensive. See Understanding Waivers of Discrimination Claims in Employee Severance Agreements" at http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html