Age Discrimination

Age discrimination occurs in the workplace when an employee is treated inequitably or unfairly for being "too young" or "too old." While it is not illegal to discriminate against an employee for being too young, state and federal age discrimination laws exist to protect workers who are 40 years of age and older.

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act of 1967 (ADEA) protects current and potential employees who are 40 years of age and older from discrimination on the basis of age. The ADEA applies to state and local governments, the federal government, and to private employers, employment agencies and labor organizations with 20 or more employees. The ADEA does not apply to independent contractors or elected officials.

Employees are entitled to waive their rights under the ADEA in connection with an exit incentive program or other employment termination program, so long as the waiver is knowing and voluntary.

Prohibited Conduct Under the ADEA

The ADEA provides the following protections against age discrimination:

• Employers are prohibited from mentioning age in job advertisements and recruitment propaganda. The ADEA allows an exception to this rule if an individual's age is a bona fide occupational qualification (BFOQ). Age is a BFOQ when it is an essential part of a job description. For example, an employer may lawfully advertise for a young person to play the role of a child in a television commercial.
• Employers may make pre-employment inquiries into a candidate's age only if the request is non-discriminatory and the employer has a lawful purpose for doing so.
• An employer may not make employment decisions based on an employee's age, unless age is a BFOQ. Employment decisions include hiring, firing, promoting, demoting, and determining assignments and workloads.
• Employers may not retaliate against employees who report instances of age discrimination in the workplace, or who file charges against their employers for such discrimination.

The Older Workers Benefit Protection Act

The Older Workers Benefit Protection Act (OWBPA) amended the ADEA to make it illegal for employers to reduce an older employee's benefits and retirement, except under limited circumstances. An employer may reduce an employee's benefits only if the cost of providing reduced benefits to the older employee is the same as the cost of providing full benefits to younger workers. Additionally, OWBPA prohibits employers from forcing an employee to retire at a certain age.

Reporting Age Discrimination

All instances of age discrimination in the workplace should be reported to the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC enforces ADEA, as well as all federal equal employment opportunity regulations, practices and policies. A charge of age discrimination may be filed by any individual who legitimately believes that his or her employment rights have been violated. Additionally, an individual, agency, or organization may file a charge on behalf of the affected individual. The EEOC requires that age discrimination charges be brought within 180 days of the alleged act of discrimination.

Potential Damages

A victim of age discrimination may also choose to file a private lawsuit against his or her employer. If an employee is successful in bringing a claim for age discrimination, the employee may recover lost wages, damages for emotional distress, attorneys fees and punitive damages. Because older workers tend to garner higher salaries, and because it is often difficult for older workers to find new employment, the damages awarded in age discrimination suits tend to be significant.