Introduction
Generally speaking, age discrimination involves viewing a current or prospective employee less favorably because of their age. While age discrimination in any situation is intolerable, only Americans who are 40 or older are protected against age discrimination by federal law.
The Age Discrimination in Employment Act
The ADEA expressly prohibits age discrimination against individuals (40 and older) with respect to any privilege, condition, or term of employment. The law applies to labor organizations, employment agencies, and private employers with 20 or more employees, as well as federal, state, and local government.
Age-based questions in employment interviews
While the ADEA doesn’t expressly prohibit companies from asking for an applicant’s age or date of birth, it’s unlawful if such inquiries deter older applicants from applying for employment, or if the inquiry indicates an employer’s intent to discriminate against older applicants based on their age. In situations where obtaining an applicant’s age or date of birth is necessary, the employer should wait to get that information until after an employment offer has been extended.
Job notices and advertisements
It’s illegal to include age specifications, limitations, or preferences on a job notice or advertisement. Job notices and advertisements are allowed to specify bona fide occupational qualifications, but it’s extremely rare for age to be reasonably considered necessary to a business’s standard operations.
Employment decisions
For employees and applicants 40 and older, the ADEA prohibits age from being a factor in employment decisions, especially hiring, firing, layoffs, job assignments, training, promotion, demotion, compensation, and benefits. The majority of age discrimination claims revolve around these topics.
Workplace harassment
It’s illegal to harass an employee because of their age. Age-based harassment typically involves derogatory or offensive remarks about someone’s age, though federal law doesn’t protect against offhand comments, simple teasing, or isolated incidents that aren’t too serious. Age-based harassment is considered illegal when the frequency and/or severity of the remarks and actions create a hostile work environment or lead to an adverse employment decision (e.g. getting fired or demoted).
It’s important to remember that age-based harassment doesn’t always involve a coworker or supervisor. There are plenty of cases where the harasser is not an employee with the company, such as a customer, client, or business partner. Age discrimination in these interactions is still covered under the ADEA.
Unfair company policies
Company policies and practices that apply to all employees regardless of age can still violate age discrimination laws like the ADEA. Such policies and practices are illegal if they negatively impact employees who are 40 or older, unless the policy or practice is based on a reasonable factor besides age.
Benefit programs
In 1990, Congress passed the Older Workers Benefit Protection Act (OWBPA) to amend the ADEA to explicitly prohibit companies from denying benefits to older employees. While it’s generally understood that providing benefits to older employees can be more expensive than providing the same benefits to younger employees, age cannot be a factor when determining benefits for employees who are 40 and older. However, an employer may be allowed to reduce certain benefits based on age if the cost of providing those benefits to older employees is no less than the cost of providing the benefits to younger employees. Additionally, companies are allowed to consider eligibility for Medicare and state-sponsored health benefits when coordinating retiree health benefit plans.
Apprenticeship programs
Generally speaking, apprenticeship programs (including joint labor-management apprenticeship programs) can’t discriminate on the basis of an applicant’s or employee’s age. The only exception is for apprenticeship programs where age is a bona fide occupational qualification, or specific programs that are granted an exemption from the Equal Employment Opportunity Commission.
Submitting a formal complaint
The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with administering and enforcing the ADEA. If you are a victim of age discrimination in the workplace, you can file a formal complaint with the EEOC online. A representative with the EEOC will schedule an interview in the local EEOC office, and you’ll have the opportunity to present your complaint to an agent in person. If the agent determines that your claim is valid, you’ll be asked to sign a formal complaint, and the EEOC will launch an investigation into the incident. If the investigation finds enough evidence to support your claim, the EEOC may reach a settlement with the employer, or they may take the case to court. Either way, you are entitled to a portion of the damages awarded in the settlement agreement or judgement.
You can also file a complaint with the Civil Rights Division (CRD) of the Arizona Attorney General’s Office. The CRD has a file-sharing agreement with the EEOC, so it’s unnecessary to file duplicate complaints with both agencies. The CRD has a similar assessment and investigation process to the EEOC. Most investigations that find evidence of age discrimination reach a settlement with the employer, but they have the ability to litigate, too. As with the EEOC, you are entitled to a portion of the damages awarded in the settlement agreement or judgement.
Note that there is a time limit to filing an age discrimination complaint under the ADEA. You have 180 days to file an age discrimination complaint with the EEOC or Arizona CRD.
Seeking civil action
In addition to filing a formal complaint with the EEOC, you have the right to sue for damages in civil court. In most cases, you’ll need to file your civil suit under the ADEA within 30 days of submitting your complaint to the EEOC or Arizona CRD.
Waiver of ADEA claims
It’s not uncommon for a company to require an employee to sign a waiver of ADEA claims when negotiating a severance package or settling a lawsuit. For a waiver of ADEA claims or rights to be legal, the waiver needs to satisfy the following requirements:
- Signing the waiver is voluntary
- The waiver is in writing
- The waiver is understandable
- The document specifically refers to ADEA claims or rights
- The waiver doesn’t waive claims or rights that may arise in the future
- The agreement is signed in exchange for valuable consideration in addition to anything of value that the employee is already entitled to
- The document explicitly advises the employee to consult an attorney before signing
- The employee has sufficient time to consider the agreement before signing—21 days for individual agreements, 45 days for group waiver agreements, and a “reasonable” amount of time for settlements of ADEA discrimination claims
If your employer has asked you to sign a waiver of ADEA claims or rights, you should always consult an attorney before signing the agreement. Once you’ve signed a waiver, it’s extremely difficult to pursue a civil claim against the employer, even if the employer is guilty of age discrimination.
Call our Employment Law team at (480) 464-1111 to discuss your case today.