Age and Employment

The ADEA, as amended by Older Workers Benefit Protection Act (OWBPA), sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. 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; ◾provide the individual at least 21 days to consider the agreement; and ◾ provide the individual at least 7 days to revoke the agreement after signing it.

How does the ADEA apply to Job Notices and 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.

What does ADEA (1967) stand for?

Age Discrimination in Employment Act

What is the Burden of Proof under the ADEA?

Challengers must establish a prima facie case by providing evidence of age discrimination by showing that: 1) They are 40 years old or older 2) They were qualified for the position in question 3) They were victims of an unfavorable employment decision (e.g., not hired, promoted, fired) 4) The organization favored an individual who was substantially younger than the challenger or 5) Show differential treatment in comparison with similarly situated younger employees (for cases where no obvious replacements, e.g., reduction in force (RIF)

What must company show in response to prima facie evidence of discrimination?

Company must articulate that a legitimate, nondiscriminatory reason exists for their decision (& age-specific factors of small age differences, same actor defense, reduction in force, reorganization plans)

Does a favored person have to be under age 40 for a decision to be deemed "discrimination" under the ADEA?

NO - The replacement must be "substantially younger" than plaintiff.

Who does the ADEA apply to?

The ADEA applies to employers with 20 or more employees, including state, local, and federal governments. It also applies to employment agencies and labor organizations.

How does the ADEA apply to 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.

Under the ADEA, may an employer favor an older worker if it adversely affects a younger worker who is 40 or older?

YES - 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.

May employees waive their rights under the ADEA?

YES. 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 (early retirement) or other employment termination program.

What are Affirmative Defenses under the ADEA?

1. BFOQ (e.g., public safety) (not hiring firefighters after 35, or mandatory retirement of law enforcement at 65, for example) 2. RFOA (Reasonable Factor Other Than Age) 3. Good Cause (really a subset of RFOA) 4) Bona Fide Benefits Plan (BFBP) 5) BFSS

What are Affirmative Defenses under the ADEA?

1. BFOQ (e.g., public safety) (not hiring firefighters after 35, or mandatory retirement of law enforcement at 65, for example) 2. RFOA (Reasonable Factor Other Than Age) 3. Good Cause (really a subset of RFOA) 4) Bona Fide Benefits Plan (BFBP) 5) BFSS (bona fide seniority system)

How does the ADEA apply to 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 1) they fall within certain specific exceptions under the ADEA or 2) if the EEOC grants a specific exemption.

What does the ADEA do?

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, and addresses both disparate TREATMENT and disparate IMPACT.

How does the ADEA apply to 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 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.

What would the plaintiff need to prove in order to prevail?

The challenger proves that the organization's reason for their rejection is a pretext for discrimination

What is made unlawful under the ADEA?

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.

Are there exemptions from the ADEA?

YES. 1) Mandatory retirement at age 65 for "bona fide executives" or "high policymaking employees" with pension of $44K or higher. 2) Hiring and forced retirement for Safety Officers (e.g., police and firefighters) consistent with State and local laws (e.g., not allowing firefighters to enter force after age 35). 3) Bona fide apprentice programs (e.g., can refuse to accept those over a given age). Need to be able to show that age at entry is a BFOQ) 4) Commercial airlines (pilots 65 years old). See: The Fair Treatment for Experienced Pilots Act (2007) 5) Air traffic controllers (those past 30 can be refused for hire; except retired military air traffic controllers). But, they must retire at age 56 6) Certain kinds of elected or appointed officials (e.g., State judges)