Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) protects both employees and applicants who are age 40 or older from employment discrimination based on age. Employers with 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year are covered by the act. 

Under the ADEA, it is unlawful to discriminate against a person because of their age in any term, condition, or privilege of employment (hiring, firing, layoff, promotion, pay, benefits, training, job assignments, etc.). Additionally, all intentional discrimination is prohibited, including when considering age in discipline, setting wages, promotions, or assigning shifts. 

Employers are also prohibited from creating a hostile working environment based on age. This includes age-based comments, threats, and age-related teasing. 

Job Notices and Advertisements

The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. Examples of prohibited phrasings include the following:

“Recent college graduates” (should be “college graduates”)

“Young professional”

“Age 50 or over” (discriminates against those ages 40 to 49 in the protected class)

However, a job notice or advertisement may legally specify an age limit where it is a bona fide occupational qualification reasonably necessary to the business.

Mandatory or Involuntary Retirement

The ADEA specifically prohibits private employers from imposing mandatory retirement on employees over 40 if it is based on the employee’s age. The ADEA requires an employee’s choice to retire to be completely voluntary with the executive and high-level policymaker and bona fide occupational qualification exemptions. 

Older Workers Benefit Protection Act

The Older Workers Benefit Protection Act (OWBPA) clarifies prohibitions against age discrimination and has specific ADEA claim release requirements. This is so an employee who waives an age discrimination claim under the ADEA does it knowingly and voluntarily.

Individual ADEA Claim Waivers Under OWBPA

Waiving an individual age discrimination claim will be valid only if:

It is in writing and easily understandable;

It specifically refers to ADEA rights or claims (Equal Employment Opportunity Commission regulations require that an OWBPA waiver must expressly spell out the ADEA by name);

It is supported by something of value (consideration), like a lump-sum payment, but this must be in addition to what the employee is already entitled to receive;

It is accompanied by a written statement advising the employee to consult with an attorney before agreeing to release their ADEA claim;

It only applies to current claims and does not include a waiver of any future claim;

The employee has at least 21 days to consider the waiver; and

The employee has seven days to revoke the waiver after they sign it.

If a waiver of age claim fails to meet any of these requirements, it is invalid and unenforceable. Also, employers cannot fix a defective waiver by late issuing a letter with all the OWBPA-required information that was omitted from the original agreement.

Group ADEA Claim Waivers Under OWBPA

If a waiver is offered in connection with an exit incentive or other termination plan offered to a group or class of employees, the following requirements must also be met:

All individuals in the group must have at least 45 days to consider the waiver/release agreement.

All individuals in the group must be informed of the class, unit, or group of employees covered by the program, any eligibility factors for the offer, and the applicable time limits.

All individuals in the group must be informed of the job titles and ages of all persons eligible or selected for the program and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected.

The group waiver must also meet the minimum OWBPA knowing and voluntary requirements described in the individual waiver requirements.

Benefits

OWBPA regulations also require that the actual amount of benefits paid or costs incurred by the employer for benefits to older workers may not be less than that paid or incurred on behalf of younger workers.