Federal law prohibits most employers from discriminating against job applicants and employees on the basis of age. The Age Discrimination in Employment Act (ADEA) protects people 40 years of age and older from age-based discrimination. Illegal discrimination can occur in hiring, training, benefits, compensation, promotion, firing, layoffs and other terms, conditions and privileges of employment. If you have experienced age discrimination, speak with an attorney to assert your rights and get your career back on track.

Provisions of the Age Discrimination in Employment Act

The major components of the ADEA include the following:

• Employers must not discriminate on the basis of age at any stage of the employment process against anyone 40 years of age or older.
• Employers are prohibited from discriminating based on age in advertisements for available positions, the application process or interviews. Ads may include age limitations only if age is a bona fide occupational qualification (BFOQ) based on business necessity; this is a very narrow exception.
• Employers must not discriminate against older workers when reducing the size of their staffs.
• Employers may not force their employees to take early retirement, but they may offer early retirement incentive packages.
• Workers who take action under the ADEA cannot be retaliated against for filing, testifying about or participating in a claim against an employer.
• Under the Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA, an employer typically may not reduce or deny benefits for older employees. In certain situations, however, benefits for older workers may be reduced if the reduction renders the cost of benefits for older workers equal to the cost of benefits for younger workers.

Proving Your Discrimination Claim

Claims of unlawful discrimination on the basis of age can be difficult to prove. An employee may show direct evidence of age-based bias that caused an adverse job action. Then the employer will have a chance to demonstrate that it would have made the same employment decision whether or not the employee had been over 40 years old.

Most age discrimination cases are based on circumstantial evidence. In such a situation, the employee will make a case based on circumstantial evidence that an adverse action was taken against the employee because of the employee's age. The employer will be allowed to argue that it made its employment decision based on a factor other than age. Finally, the employee will attempt to show that the employer's explanation is not credible.

Waiver of ADEA Rights

An employee may waive his or her rights under the ADEA at the request of an employer in exchange for a severance package or other consideration. The ADEA sets out specific standards that must be met before a waiver of rights can be considered knowing and voluntary. A valid ADEA waiver must:

• Be in writing
• Be understandable
• Specifically refer to the employee's ADEA rights or claims
• Not waive any potential future rights or claims
• Advise the employee to speak with an attorney before signing the waiver
• Provide the employee at least 21 days to think about the waiver and at least seven days to revoke the wavier after signing it

If your employer asks you to waive your ADEA rights, you should consult a lawyer before you do so.

Contact an Attorney

Employees and job applicants have the right to be free from age discrimination in hiring, firing, promotion, training, benefits, compensation and other aspects of the employment relationship. In addition to the federal Age Discrimination in Employment Act, state laws also protect employees from age discrimination. If you have been discriminated against because of your age, contact an attorney to discuss your legal claim.

Copyright ©2009 FindLaw, a Thomson Business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Return to Main

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Copyright © 2010 by Law Offices of Emanuel S. Fish Maplewood, New Jersey. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.