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Employment Practices Toolkit

Age Discrimination Employment Act Overview

Employers, age-related questions and more

The Age Discrimination in Employment Act of 1967 (ADEA) is a federal law that 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 prohibits both intentional discrimination and prohibits policies that unintentionally have a disparate impact on older workers and applicants.

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.

Covered Employers

The ADEA applies to employers with 20 or more employees.  Depending on the circumstances, temporary employees may need to be included to determine whether the 20 employee threshold has been met.

Age Related Questions

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 are closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA. If the information is needed for a lawful purpose, it can be obtained after the employee is hired.

Benefits

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 might 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 no less than 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.

Special Rules Regarding Waivers of ADEA Rights

An employer may ask an employee to waive his/her rights or claims under the ADEA.  Such waivers are common in connection with exit incentive or other employment termination programs. 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 in addition to anything of value to which the individual already is entitled;
  • 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.

There are additional requirements for group terminations.

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Article created by Jackson Lewis and republished here with permission.

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.