Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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The Age Discrimination in Employment Act (ADEA) was enacted in 1967 by the federal government to remedy the problems that come with an aging workforce. The ADEA protects current and prospective employees, age 40 or older, by prohibiting employer discrimination based on age. However, while ADEA’s protections are broad, not every employee and employer falls within the provisions of the ADEA. If you feel that you have been discriminated against because of your age, before filing a lawsuit, it’s best to have a clear understanding of the protections given by the ADEA, the exceptions within the ADEA, and the qualifications an employee and an employer must have to be subject to the ADEA. It is also important to understand that as a federal law, the Age Discrimination in Employment Act only offers baseline protections, and many states have their own laws that give employees more protection than the ADEA.

Which Employers Must Abide by the Age Discrimination in Employment Act?

The Age Discrimination in Employment Act applies to employers that are individuals, business entities, labor organizations, and any other organized group of persons with 20 or more employees that work all working days within at least 20 weeks out of the year. The employer must also be engaged in an industry that affects commerce, and have an employment relationship with the employee claiming discrimination. The ADEA covers U.S. employers that are overseas, except when it would violate the laws of the country where the employer operates. Foreign companies that operate in the U.S. are also subject to the provisions of the ADEA, and even when they operate overseas if there is a U.S. employer working behind the scenes of the company.

Because the ADEA only applies to employers with 20 or more employees, smaller employers are not subject to its provisions. Further, employers with over 20 employees may be exempt if they can show that there are bona fide occupational qualifications that make age discrimination necessary to the position. For instance, hiring a young actor to play the part of a young person within a movie falls into this exception.

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An Employee Under the ADEA

Most employees age 40 and over, subject to the exceptions of the employers that qualify, fall within the ADEA’s protections. There is no cap on the employee’s age under the ADEA. However, the employee must also be able to show that there is an employee-employer relationship. This means that independent contractors are not given ADEA protections. An individual elected to a local or state office is also not given ADEA protections. Further, the staff, appointees, and advisors of this elected individual are not covered by the ADEA.

Protections Under the Age Discrimination in Employment Act

Under the ADEA, it is illegal to consider an employee’s age during the hiring, firing, promoting, demoting, or compensating process. It is also illegal for an employer to discriminate based on age for purposes of job assignments, fringe benefits, or to classify older employees into groups that unfairly deny them equal employment opportunities. The ADEA also generally prohibits involuntary retirement based on age.

There are three main causes of action an individual can claim in a lawsuit against their employer under the ADEA. Discrimination may be shown by disparate treatment, disparate impact, or hostile work environment. Disparate treatment occurs when an employer discriminates against an older employee by treating them less favorably because of their age. For example, suppose an employer refused to give an older employee a job assignment or promotion, and told him that “the younger generation understands this side of the market better.” This could be grounds for a disparate treatment suit, as the employer is not basing the promotion on the older worker’s ability, he is basing it on his age.

Understanding Disparate Impact Discrimination

Disparate impact discrimination can be shown by pointing to an employers practice or policy that seems non-discriminatory, but affects older workers as a group. However, it should be noted that disparate impact is hard to show in age discrimination suits, as there are many exceptions to the ADEA. For example, in 2005, a group of police officers brought a suit against the police force for giving police officers that had less than five years experience greater pay raises than officers than had more experience. While this practice had a disparate impact on older officers, the city was able to show that they based their decision on seniority with that particular force, and the officers lost the case. Finally, a hostile work environment claim is proved by showing that the employee was harassed by an employer based on his or her age. A hostile work environment claim may also be shown when a coworker or customer of the individual’s job is the harasser, and the employer fails to do anything about it.

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Exceptions to ADEA Rules

While the ADEA gives older workers a number of protections, some age discrimination cases are more difficult to prove because of the exceptions to the ADEA. For example, the employer may use other reasonable factors when making work-related decisions. These reasonable factors include seniority, job performance, or other “good cause.”

While the ADEA generally prohibits involuntary retirement based on age, there are exceptions for executives over the age of 65 that make high policymaking decisions within the company. Another exception to the involuntary retirement rule is when the public safety may be in danger. This means that employees such as airline pilots and bus drivers may face legal involuntary retirement by their employers. Further, even an employer that is prohibited from enforcing involuntary retirement may incentivize voluntary retirement.

Getting Help

If you believe that you have been discriminated against by your employer, you should contact an employment law attorney immediately. Further, even if you fall outside of the ADEA’s protections, there are often state civil rights/discrimination laws that give even more protections to employees than the federal laws do. An employment law attorney in your area will be able to help you understand the ADEA and all of your options. An attorney can also ensure that you are redressed for any injuries caused by a discriminatory employer.