Age Discrimination

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, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments and training.

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 to labor organizations, as well as to the federal government.

Job Notices and Advertisements

The ADEA makes it unlawful to include age preferences, limitations or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice of advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupation qualification" (BFOQ) reasonably necessary to the essence of the business.

Pre-Employment Inquries

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 of a lawful purpose, rather than for a purpose prohibited by the ADEA.

Waiver of ADEA Rights

At an employer’s request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among the other requirements, a valid ADEA waiver:

• must be in writing and be understandable;
• must specifically refer to ADEA rights or claims;
• may not waive rights or claims that may arise in the future;
• must be in exchange for valuable consideration;
• must advise the individual in writing to consult an attorney before signing the waiver; and
• must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.

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.