Age Discrimination

A job applicant or an employee cannot be discriminated against because of his/her age. Both federal and state laws prohibit age- related discriminatory practices in regard to hiring, employment, wages, promotion, compensation, employee benefits, health care coverage, etc. The laws are designed to promote the employment of older persons based on their abilities and qualifications, irrespective of age. The federal Law—the Age Discrimination in Employment Act (ADEA— protects employees over 40 from being discriminated against at the work place due to their age.

Actions prohibited by federal and state law:

• Denial of a particular job to a qualified applicant on the basis of age
• Firing employees because of old age and recruiting younger people in their place
• Denial of promotions, transfers, or assignments because of age
• Forcing older employees to take early retirement
• Making age-related remarks
• Penalizing older employees with reduced privileges, employment opportunities, or compensation
• It is unlawful to include age preferences, limitations, or specifications in job notices or advertisements.

The Age Discrimination in Employment Act (ADEA)

• The 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.
• It covers public as well as private sector employees, companies employing at least 20 people, and unions and employment agencies. The ADEA does not apply to elected officials or independent contractors.
• It is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
• It is unlawful to retaliate against the employee for opposing employment practices that discriminate based on age, or for filing an age discrimination charge, or for testifying or participating in any way in an investigation, proceeding or litigation under the ADEA.
• The law is enforced by the Equal Employment Opportunity Commission (EEOC). It has the authority under the ADEA both to investigate complaints and to file lawsuits. However, individuals may file lawsuits in either state or federal court alleging violations of ADEA.
• 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.
• 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 (or such related questions as “When did you graduate from high school?”) 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.

ADEA Exceptions

• If the employee has been in a bona fide executive position or in a high policy-making position for the past two years and is entitled to an annual pension of at least $44,000 a year, the employee can be required to retire at the age of 65.
• If age is a bona fide occupational qualification (BFOQ) of the employee's job, the employment may be terminated when the age becomes a relevant factor. The BFOQ exception is limited to jobs where the employer can legitimize a cutoff age for reasons that are reasonably necessary for the normal operation of the enterprise. For example: safety personnel (firefighters, police officers), tenured university faculty, and certain federal employees having to do with law enforcement and air traffic control.
• Or if the employee's job is terminated because of the operation of a bona fide security system, retirement plan, or apprentice system.

The employee can recover the following as damages:

• Job reinstatement, in the event of job termination because of age
• Wage adjustments
• Back pay or double back pay
• Future pay
• Promotions
• Recovery of legal fees
• Witness fees
• Filing costs
• Compensatory damages up to $300,000.
• In cases where the employer acted with reckless disregard for the rights of the employee, the employer must pay the employee liquidated damages. For example, if the employer owes the employee $30,000 in back pay, liquidated damages would equal an additional $30,000. The courts also award attorney's fees to successful plaintiffs.

In the following situations, employers have certain rights:

• The employer can fire or terminate the employment of older workers for documented, inadequate job performance or other good cause
• When the employee voluntarily agrees to early retirement as a result of being offered additional benefits, such as a larger pension, extended health insurance, or a substantial severance packag
• The employer may force the employee to retire, if the employee is 65 or older, has worked as an executive for the past two years, and is entitled to an annual pension of at least $44,000 a year
• If both the older employees and younger employees are laid off and treated on the same terms
• The employer may refuse to hire older applicants when successful job performance absolutely requires that a younger person be hired for the job
• Employers have the right to take adverse decisions as part of good-faith business decisions and which do not have any discriminatoryintentions.

Older Workers Benefit Protection Act of 1990 (OWBPA)

The OWBPA amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

At an employer's request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, sets out specific standards that must be met in order for a waiver to be considered to be valid.

Among other requirements, a valid ADEA waiver:

• Must be in writing, be understandable, and voluntarily agreed to by the employee
• Must specifically refer to ADEA rights or claims
• May not waive rights or claims that may arise in the future
• Must be in exchange for valuable consideration
• Must advise the individual in writing to consult an attorney before signing the waiver
• Must provide the individual at least 21 days to consider the agreement before it is effective, and at least 7 days to revoke the agreement after signing it
• In addition, 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. When the employer requires waivers in connection with mass termination programs and large scale voluntary retirement programs, all individual must be given written notification and the facts on: the class, unit or group of individuals covered by the program; any eligibility factors for the program; time limits applicable to the program; the job titles and ages of all individuals selected for the program; and the ages of all individuals not eligible for the program. All the individuals in the program must be given at least 45 days to consider the agreement.

Many states have enacted tougher laws protecting workers by reducing the number of employees an employer must have to be subject to the law or by reducing the cutoff age for inclusion into a protected class. Employers should check their respective state laws to see what protection is available to employees working for small employers. Some state agencies process discrimination cases more quickly than the EEOC and may also provide greater damages and remedies. It is best to consult a qualified attorney before pursuing an age discrimination case.