United States: Age Discrimination In Employment Act - 2013

The average lifespan of Americans is approaching 80 years. The ratio of older adults to younger adults is rising. And as the population changes, the workplace changes too. Some employees are choosing to work longer. Others are using their longer and healthier lifespan to pursue a second career. Still others find themselves in need of a job during a longer than expected retirement. As these changes occur, employers are increasingly faced with new challenges in employing older workers. It is now more essential than ever for employers to understand the laws prohibiting age discrimination in employment.

In 1967, Congress passed the Age Discrimination in Employment Act, commonly referred to as the ADEA, which protects individuals age 40 and older from discrimination in the workplace based on age. In 1990, Congress passed the Older Workers Benefit Protection Act, or OWBPA, which amended the ADEA to prohibit employers from denying benefits to older workers. Together the ADEA and the OWBPA amendments comprise the federal law that protects older employees from workplace discrimination.

Both laws will be discussed in this booklet. Many states also have laws protecting workers against age discrimination in the workplace, which this booklet does not address. Some state laws closely parallel the ADEA, but other states have enacted more restrictive age discrimination protections. Employers must ensure compliance with the laws of the states in which they operate, in addition to the ADEA and OWBPA.

The ADEA is separate and distinct from another principal law governing discrimination in employment – Title VII of the Civil Rights Act of 1964 – which protects individuals against discrimination on the basis of race, color, national origin, sex and religion. Certain aspects of Title VII and the ADEA are similar, but the two laws are not duplicative in every respect. To fully understand the reach of protections for older workers and the set of laws governing age discrimination in the workplace, employers must familiarize themselves with both the general principles behind the ADEA and its specific provisions.

To assist you in understanding these laws, this booklet first explains the basic principles of the ADEA. It then discusses specific types of age discrimination and what type of related conduct falls outside of illegal age discrimination. Next, the booklet addresses retaliation restrictions, age harassment and the legality of reverse age discrimination. It then explores several special considerations and unique situations under the ADEA. Of course, the discussion is intended only as a general overview of the most important aspects of this law, not as legal advice for any specific factual situation.


"It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with age." – United States Supreme Court in Hazen Paper v. Biggins

The ADEA applies to employers in industries affecting commerce with 20 or more employees in the current or preceding calendar year. Leased employees, overseas employees and employees of integrated companies count for the 20 employee threshold, but temporary employees do not.

The ADEA prohibits employers from discriminating against employees and applicants, who are 40 years old or older, based on age. Specifically, the ADEA makes it unlawful to discriminate against these persons because of their age with respect to any term or condition of employment, including hiring, firing, compensation, layoffs, promotions, compensation, benefits, job assignments and training.

This includes discrimination against an employee in favor of a worker who is under the age of 40, but it also prohibits discrimination against an individual in favor of a worker who is 40 years old or older, but younger than the employee claiming the discrimination.

Example: Maria, a 56-year old employee is refused a promotion. She may be able to show that her employer discriminated against her by promoting Paul, an employee who is 42 years old, even though Paul also falls within the protected age category established by the ADEA.

The following are examples of the type of conduct that violates the ADEA:

  • a supervisor's refusal to promote older employees because they are "too old" or assuming they will be retiring soon; a company-wide decision to lay off all older employees as part of an effort to promote a youthful company image and culture;
  • implementing a health benefit program for retirees that reduces benefits at age 65; or
  • awarding bonuses to all employees under 35 years of age because the company values younger employees more than older employees.

The ADEA also makes it unlawful to retaliate against an applicant or employee for conduct related to age discrimination.Protected conduct includes opposing a discriminatory employment practice, filing an age discrimination charge, or testifying or participating in an investigation, proceeding or litigation involving age discrimination.The following acts are some examples of unlawful retaliation:

  • firing an employee because he complained that his supervisor did not consider him for a promotion because of his age;
  • denying an annual bonus to employees because they testified in support of a lawsuit brought by a former employee claiming age discrimination.

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