• The ADEA protects employees who are 40 years old or older.

The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer to discriminate against individuals in any aspect of employment because they are 40 years old or older (unless one of the statutory exceptions applies). Favoring an older individual over a younger individual because of age, however, is not unlawful discrimination, even if the younger individual is at least 40 years old.

The ADEA applies to:

• Employers with 20 or more employees, including state and local governments; and
• Employment agencies, labor organizations, and the federal government.

Motivating factors

The regulations recognize that differentiation based on reasonable factors other than age are not discriminatory. These may include:

• Skill
• Knowledge
• Demonstrated performance

The issue in age cases is almost always one of motivation. Factors that tend to suggest age as a motivating factor include:

• Remarks suggesting age bias by the decision maker,
• A pattern of negative actions against older employees that cannot be explained, and
• Replacement by a substantially younger employee without greater qualifications.

Factors that tend to suggest that age was not a motivating factor include:

• Favorable treatment toward other senior employees,
• Well-documented evidence of other reasons, and
• Replacement by someone who is not substantially younger in a discharge case.

Juries seem inclined to conclude that the reason for discharge was due to age when:

• The employee has many years of service,
• No proper warning or opportunity to correct the problem was given, and
• The employer denying age discrimination has allowed age-based remarks or jokes.