Equal Employment Opportunity: 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 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.
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 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.
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 either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. 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:
- be in writing and be understandable;
- specifically refer to ADEA rights or claims;
- not waive rights or claims that may arise in the future;
- be in exchange for valuable consideration;
- advise the individual in writing to consult an attorney before signing the waiver; and
- 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 program or other employment termination program, the minimum requirements for a valid waiver are more extensive. See the EEOC's guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements.
In the Fiscal Year of 2010, the EEOC received 23,264 charges of age discrimination.
The same year, the EEOC resolved 24,800 age discrimination charges and recovered $93.6 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).
More statistics, including historical data, on age discrimination from the EEOC can be found here.
Need more information?
The EEOC's guidelines on age discrimination are available in the Code of Federal Regulations, at:
- 29 C.F.R Part 1625: Age Discrimination in Employment Act
- 29 C.F.R Part 1626: Procedures--Age Discrimination in Employment Act
- 29 C.F.R Part 1627: Records to be made or kept relating to age: notices to be posted: administrative exemptions
The EEOC has issued Policy Guidance Documents Related to Age Discrimination, including:
- Q&A-Understanding Waivers of Discrimination Claims in Employee Severance Agreements
- Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.
- Compliance Manual Section 10: Compensation Discrimination
- Compliance Manual Section 3: Employee Benefits
- See also: Rescission of Section IV (B) of EEOC Compliance Manual Chapter on "Employee Benefits" and deletion of example
The text of the Age Discrimination in Employment Act is also available.
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This page was last modified on September 8, 2008.