Your Rights Against Age Discrimination

by Attorney Amy DelPo

State and federal laws protect workers from discrimination based on their age.

Stereotypes about older people abound in our culture, but employers are not allowed to indulge in them when making workplace decisions. A number of state and federal laws prohibit employers from discriminating against employees and applicants on the basis of age.

The Age Discrimination in Employment Act

The federal Age Discrimination in Employment Act (ADEA -- 29 U.S.C. §§ 621-634) is the major federal law that prohibits employers from discriminating against employees and applicants who are 40 years of age or older on the basis of their age.

The ADEA applies to all private employers with 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.

The ADEA protects workers from age discrimination in every phase of the employment relationship, including help-wanted ads, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments, and termination. In a recent case, the U.S. Supreme Court held that the ADEA prohibits practices and policies that are seemingly neutral, but have a worse impact on older workers (disparate impact), as well as those that explicitly treat older workers worse (disparate treatment). (See Smith v. City of Jackson, Mississippi , 125 S.Ct. 1536 (2005).)

Not only does the ADEA prohibit employers from discriminating against older workers in favor of those who are younger than 40, but it also prohibits employers from discriminating among older workers. For example, an employer cannot hire a 43-year-old over a 53-year-old simply based on age.

Discrimination in Benefits and Early Retirement

The federal Older Workers Benefit Protection Act (OWBPA -- 29 U.S.C. § 623 and following) amended the ADEA to specifically make it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Like the rest of the ADEA, the OWBPA only protects people who are at least 40 years old.

Under this law, an employer cannot reduce health or life insurance benefits for older employees, nor can it stop their pensions from accruing if they work past the normal retirement age. The Act also discourages businesses from targeting older workers when cutting staff.

In addition, the Act prohibits employers from forcing employees to take early retirement. An early retirement plan is legal only if it gives the employee a choice between two options: keeping things as they are or choosing to retire under a plan that makes the employee better off than he or she was previously. This choice must be a genuine one; the employee must be free to reject the offer. And, if either choice makes the employee worse off, the offer violates the Act.

State Laws

Many state laws also prohibit discrimination on the basis of age. Although some of these laws essentially mirror federal law and protect people only older than 40, other state laws are broader and protect workers of all ages.

State laws tend to apply to employers with fewer than 20 employees, so your employer might have to comply with your state law even if it isn’t covered by federal law.

To find out more about the ADEA, the OWBPA, and age discrimination law in your state -- including how to file an age discrimination complaint -- contact your local field office of the Equal Employment Opportunity Commission (EEOC) (contact information is available at www.eeoc.gov) and your state fair employment office.