MightyRecruiterThe Age Discrimination in Employment Act is a federal law passed in 1967 that prohibits age discrimination in a wide range of situations for workers 40 and older. Among its greatest strides are rejecting job descriptions or advertisements that express age biases, limits and preferences; doing away with age discrimination in job aspects such as hiring, promotions, salaries and employee terminations; denying benefits to older employees in typical circumstances; and doing away with mandatory retirement practices in many cases.
Who Must Adhere to ADEA?
ADEA applies only to employers with 20 or more employees, and its provisions extend to state and local governments, the federal government, labor organizations and employment agencies. The following is a list of situations in which ADEA applies.
- Job Descriptions, Notices and Advertisements: ADEA says it is unlawful to include age preferences in job notices. Only in cases of a “bona fide occupational qualification,” or a necessary requirement for normal operations, is age expression allowed.
- Apprenticeship Programs: Such programs include labor-management programs and cannot favor people depending on age. However, the ADEA does make a few specific exceptions, and the Equal Employment Opportunity Commission sometimes grants certain exceptions.
- Age-Related Inquiries: Many employers ask about an applicant’s age and/or date of birth; ADEA does not prohibit such practices. Naturally, such a requirement is likely to discourage some older workers from applying, so such age-related inquiries may be carefully assessed to ensure they were made for a valid reason as opposed to age discrimination as it applies to ADEA.
Apparent Peculiarities of ADEA
Because people are living longer, it may seem peculiar that 40 (as opposed to, say, 50) is the threshold age for age discrimination. However, once you remember that ADEA was passed in 1967, it makes more sense.
ADEA does not apply to reverse age discrimination. That is, it covers workers 40 and older, not workers 39 and younger. Someone who is 38 and fired to bring a 25-year-old on board would not have a case under ADEA. However, situations are not always as clear cut as that. For example, take the case of someone who is 65 and gets laid off by a boss who has made a habit of saying he wanted to bring “young blood” to the specific position. Ten other people are also laid off, but the week after layoffs, only the older person’s job is replaced when a 45-year-old person is hired. Since the person is 45, above the threshold of 40, it might seem that ADEA does not apply. In fact, it might, given the particulars of this case such as the boss’s desire for young blood in that position and replacing only that position.
OWBPA Amendment
The Older Workers Benefit Protection Act of 1990 is an amendment passed to ADEA in recognition that providing some benefits to older workers costs more than it would to provide the same benefits to younger workers. Thus, employers had an incentive to hire younger rather than older. OWBPA protects these older workers but does provide an exception for circumstances in which employers are allowed to reduce benefits based on age; the cost of the reduced benefits must be the same for a younger worker as it is for an older worker.
ADEA Waivers
Some employers ask employees to waive their rights under ADEA when they are trying to come to terms on a settlement or when the employer is offering an incentive for employees to leave. ADEA waivers are allowable, but they must meet a few requirements. They also are more extensive in cases of employer exit incentive/employer termination offers. Among other issues, ADEA waivers must refer specifically to ADEA rights, provide a fair tradeoff for the signing away of rights, and give the older person a minimum of 21 days to mull over the agreement and a minimum of seven days to change his or her mind after signing.
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