Age Discrimination

Scope

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.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC). The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age. The protections apply to both employees and job applicants.

The regulations recognize differentiations based on reasonable factors other than age, and bona fide seniority systems. Differentiations based on factors other than age are difficult to characterize, but include such things as experience and demonstrated ability. The regulation at §1625.7(b) actually states, “No precise and unequivocal determination can be made as to the scope of the phrase “differentiation based on reasonable factors other than age.” Whether such differentiations exist must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.”

Many state and local statutes also preclude age discrimination. Some may be broader in scope than the federal ADEA, so employers should consult the laws of each state in which they operate.

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.

Common issues. In most ADEA cases, the issue is why the employer took the action at issue. If discharge is at issue when the employee has many years of service, and no proper warning or opportunity to correct the problem was given, juries seem inclined to conclude that the reason was age. Allowing age-based remarks or jokes can also produce credibility issues for the employer who denies age discrimination.

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.

• Help wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals.
• Notices or advertisements that contain terms such as age 25 to 35, young, college student, recent college graduate, or others of a similar nature are a violation, unless an exception applies.
• However, employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension. This is a change from the original regulation (1625.4 ), with an effective date of July 6, 2007. The EEOC revised the regulations to conform to the Supreme Court’s holding in General Dynamics Land System, Inc. v. Cline, that the ADEA only prohibits discrimination based on relatively older age, not discrimination based on age generally. The revision deleted language that prohibited discrimination against relatively younger individuals. The new rule explains that the ADEA only prohibits employment discrimination based on old age and, therefore, does not prohibit employers from favoring relatively older individuals.

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.

Benefits. The Older Workers Benefit Protection Act of 1990 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 would 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 the same as the cost of providing benefits to younger workers.

This provision permits age-based reductions in employee benefit plans where those reductions are justified by significant cost considerations. It does not apply to paid vacations and paid sick leave, since such reductions would not be justified by significant cost considerations.

Recordkeeping. Every employer must keep for three years payroll or other records which contain a name, address, date of birth, occupation, rate of pay, and compensation.

The following personnel or employment records shall be kept for one year:

• Job applications, resumes, or any other form of employment inquiry;
• Promotion, demotion, transfer, layoff, recall, or discharge of any employee;
• Job orders submitted to an employment agency for recruitment;
• Test papers from applicants which show the results of any employer-administered aptitude or other tests that are considered by the employer;
• The results of an physical examination where the exam is considered by the employer; and
• Advertisements or notices for job openings, promotions, training programs, or overtime opportunities.

The employer must keep on file any employee benefit plans, as well as copies of any seniority systems and merit systems that are in writing, for the full period the plan or system is in effect, and for at least one year after its termination.

Notices to be posted. Every employer, employment agency, and labor organization which has an obligation under the ADEA must post the notice pertaining to the applicability of the Act prescribed by the EEOC or its authorized representative.