Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act is the federal law governing age discrimination. It was enacted in 1967 to promote the employment of older persons and prevent discrimination.

The ADEA prohibits employers with 20 or more employees from refusing to hire, from firing, or otherwise discriminating against a person age 40 or over solely on the basis of age. Thus, an employer cannot deny an employee pay or fringe benefits where the only justification is age. Nor may an employer classify employees into groups on the basis of age in a way that unfairly deprives individuals of employment opportunities. For example, an employer may not relegate all older workers to a particular level of employment within a company and then decline to promote them.

The ADEA protects individuals who are at least 40 years old. There is no cap, so every person age 40 and over is protected by the Act, with a few exclusions and exceptions. For instance, an elected official and his or her staff and “policy making appointees” are excluded from the Act. And the ADEA carves out a compulsory retirement exception for “bona fide executives” or “high policymakers, ”i.e., an employer may impose compulsory retirement on any employee age 65 or over who is either a bona fide executive or high policymaker and who is entitled to receive a nonforfeitable annual retirement benefit of at least a set minimum value.

The Age Discrimination in Employment Act functions similarly to other federal discrimination laws, such as Title VII and the Americans with Disabilities Act. However, it has its own rules concerning which employers are covered and other requirements.

Who Qualifies as An Employer Under the ADEA?

The ADEA defines “employer” to include every individual, partnership, association, labor organization, corporation, business trust, legal representative, or organized group of persons who (1) is engaged in an industry affecting commerce (most every industry will affect commerce within the meaning of the ADEA); and (2) has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

The definition includes state and local governments and agencies. However, the Supreme Court has ruled that individuals cannot sue states in federal court under the ADEA due to sovereign immunity. As a result, although states, state agencies, and political subdivisions must abide by the terms of the ADEA, states cannot be sued by individuals in federal court. However, individuals may bring a state court claim against the state, if applicable, or the EEOC may sue on their behalf.

The ADEA contains a separate section that applies to federal government employment. The Act also applies to any agent of an employer that is subject to the Act. In addition to its application to employers in the traditional sense, the ADEA applies to labor unions and employment agencies.

To summarize, in order to be covered by the ADEA you must:

  • Be engaged in an industry affecting commerce;
  • Have 20 or more employees; and
  • Have an employment relationship with the claimed employee.

Who Qualifies as An Employee Under the ADEA?

Whether an individual is an employee for purposes of the ADEA depends mainly on the conduct of the worker. Very few persons are expressly excluded from the definition of “employee” in the ADEA. Independent contractors are not employees within the meaning of the ADEA and are not entitled to its protections. There must be an employer-employee relationship for the ADEA to come into play.

Persons elected to office in a state or a political subdivision of the state are excluded, as are the personal staff, policymaking appointees, and immediate advisers of the elected officer.

Practices Prohibited by the ADEA

The ADEA makes it unlawful for an employer to deprive an individual of “compensation” or any of the “terms, conditions, or privileges of employment” due to age. In other words, an employer cannot deny an employee pay or fringe benefits where the only justification is age. This prohibition encompasses a wide array of employment issues.

Generally speaking, the term “compensation” means an employee’s pay. But the ADEA also prohibits discrimination in the “terms, conditions, or privileges of employment.” This would include all adverse employment actions, such as termination, demotion, and failure to promote.

Age Harassment

As with other protected worker classifications, age can form the basis of a harassment claim. The Supreme Court has not yet ruled whether an employee can sue for age harassment under the ADEA. However, federal appellate and trial courts have found that a cause of action for age harassment does exist. Employers should have a strong policy against age harassment in the workplace and should prohibit employees from engaging in such behavior.

In addition, age harassment claims tend to arise in the context of an employer’s age-biased comments—or tolerance for co-worker comments—offered as proof of age as the motivation for an adverse employment action. Even if the employee is not alleging harassment, evidence of age harassment in the workplace can support an employee's claim that the company was biased on the basis of age.

Retaliation

Retaliating against an employee who files an age discrimination charge is unlawful under the ADEA. Retaliation may include firing, demoting, or refusing to promote an employee because the employee complained of discrimination or harassment.  Protected conduct includes filing an age discrimination charge or participating in a complaint or investigation of age discrimination.

After an employee has filed a charge or complaint, whether externally or internally, you should refrain from taking any action against the employee that might be construed as retaliation. Publicly humiliating or embarrassing an ex-employee may constitute retaliation.

Refusing to give a reference for an ex-employee who has filed a discrimination charge or complaint also may be considered retaliation if the employee can show that a reference would have been given had the employee not filed the charge or complaint. This does not mean that you must give a positive reference for every employee.

However, if a request for a reference is made, it is wise to refrain from mentioning any charge, complaint, or suit that the ex-employee has filed and to restrict comments to objective data reflected in the ex-employee’s personnel file, such as dates of employment, absenteeism, and general comments about performance that can be backed up later if necessary.

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