Age Discrimination in Employment Act of 1967 (ADEA)

The Employer must have a minimum of 20 employees Covers both employees and job applicants Protects individuals age 40 and over.

An employer may ask for the date of birth and age of an applicant, however, such questions could indicate an intent to discriminate.

A hiring notice cannot indicate an age preference or specify a maximum age. An employer cannot deny a person entry to an apprenticeship program due to their age.

An employer cannot choose to deny benefits to an older employee even if it costs more to maintain those benefits for that employee as compared to others.

Exceptions:

• Bona Fide Occupational Qualification:  age limitations may be okay if it is reasonably necessary to normal business operation

• Law Enforcement & Fire Department Personnel:  the ADEA does not prohibit mandatory retirement for these individuals.  However, these individuals cannot be denied promotion or access to training.

• Bona Fide Executives and High Policy Makers:  employers may require a high-ranking employee to retire or step down to a lesser position if they are over 65, have worked the previous 2 years as a bona fide executive or in a high policy making position and the employee is entitled to an immediate, non-forfeitable annual retirement of at least $44,000 (not including social security contribution, employee contributions, contributions of former employees or rollover contributions).

• The ADEA does not apply to contractors and elected officials

• Limitations of benefits based on age are sometimes permitted. However, the employee is still entitled to the same cost of providing benefits as that of younger workers.

An employer may ask an individual to waive their rights under the ADEA and they may choose to do so but it must be in writing.

Age discrimination is amongst the most difficult to prove and remains one of the most prevalent in EEOC filings because the law allows certain age based actions by an employer if they are grounded in sound business reasons. For instance, if an employer is attempting to cut costs and the easiest way to do so is by terminating the employees that make the most money.  The employees with the highest salaries are often employees over 40.

Unlike any of the other discrimination statutes, the ADEA permits an individual to file a lawsuit anytime after 60 days has passed since filing the EEOC complaint, whether the agency has issued a right to sue letter or not.