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Federal Laws and Age Discrimination

The Age Discrimination in Employment Act (ADEA)

Title VII of the Civil Rights Act of 1964, provides protection from discrimination to individuals based on several classifications – race, color, religion, gender and national origin. Age is not such a protected classification. Older workers were entitled to no protections from age discrimination in the workplace until Congress enacted the Age Discrimination in Employment Act (ADEA) in 1967. The Equal Employment Opportunity Commission (EEOC) enforces the ADEA.

Under the ADEA, it is unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual’s age….” Applying to all workers over the age of 40 years, the ADEA makes it unlawful to discriminate against an employee or job applicant because of his/her age with respect to any term, condition or privilege of employment, such as hiring, firing, promotion, transfer, layoff, compensation, benefits, job assignments and training.

The ADEA applies to most employers with 20 or more employees, including state and local governments, employment agencies and labor unions, as well as to the federal government. However, while it is illegal to discriminate against an employee over 40 years old in favor of another employee less than 40 years of age, it is acceptable for employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40+ years of age. Furthermore, it is unlawful to retaliate (link to retaliation page) against an employee who opposes employment practices that discriminate based on age or files an age discrimination charge, testifies, or participates in an investigation, proceeding, or litigation under the ADEA.

ADEA protections include:

  • Apprenticeship Programs – Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA; however, the EEOC may grant a specific exemption to an apprenticeship program if it deems the age limitations appropriate.
  • Job Notices and Advertisements – An age limit may be specified in a job notice or advertisement only where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the employer’s business.
  • Pre-Employment Inquiries – Employers are not specifically prohibited from asking an applicant’s age or date of birth under the ADEA; however, because such inquiries may deter older workers from applying for employment or may otherwise indicate the 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.
  • Benefits – The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Since the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and those greater costs would create a disincentive to hire older workers, an employer is only permitted to reduce benefits based on age if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

The Older Worker’s Benefit Protection Act (OWBPA)

Federal law further protects older workers with the Older Worker’s Benefit Protection Act (OWBPA). Included in the ADEA as an amendment, the OWBPA forbids discrimination by employers based on age when providing employee benefits, like severance. It prohibits employers from denying employee benefits to older workers based on age.

Age discrimination claims are common when there is a reduction in workforce, particularly of long time employees. The OWBPA was enacted to “protect the rights and benefits of older workers” who are being laid off and considering severance agreements and early retirement programs. An employer may ask an employee to waive his/her rights or claims under the ADEA in connection with an exit incentive program or other employment termination program or even in the settlement of an ADEA administrative or court claim. Therefore, the OWBPA established specific requirements for “knowing and voluntary” waivers.

For waivers of ADEA rights and claims, among other requirements, a waiver or “release” 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; and
  • provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

The minimum requirements for a valid waiver are even more extensive if the employer’s request for a waiver is in connection with an exit incentive program or other employment termination program.

Sidney L. Gold and his team of employment attorneys have a keen understanding of the protections afforded to older employers under the ADEA and the OWBPA. If you believe you have been a victim of age discrimination despite the protections provided by these federal laws, contact our Philadelphia age discrimination attorneys to discuss your potential remedies. We stand ready to utilize our skill, knowledge and experience to fight for your rights under the ADEA and the OWBPA, as well as pursuant to the protections afforded to you under the state and local laws.

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