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ADEA: The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) is the federal law governing age discrimination, and was enacted in 1967 in order to promote employment of older workers based upon their ability rather than age, to disallow arbitrary age discrimination in employment, and to assist employers and workers in finding ways to solve problems arising from the effect of age on employment. After it was enacted, the ADEA went through a series of amendments to strengthen and expand its coverage of older employees. Originally, the ADEA only covered employees between the ages of 40 and 65. Eventually the upper age limit was raised to age 70, and then removed altogether. Since there is no longer a cap all workers age 40 and older are protected by the ADEA, with few exclusions and exceptions. The enforcing authority of the ADEA was transferred from the Department of Labor (DOL) to the Equal Employment Opportunity Commission (EEOC), in 1978. In addition to the federal ADEA law, many states also have laws prohibiting age discrimination in the workplace, many of which may be more stringent than the federal law. ADEA statute prohibits discrimination against individuals regarding any terms or conditions of employment, the act’s protections not only cover employees but also extend to both applicants for employment and discharged ex-employees. ADEA prohibits any employer from refusing to hire, firing, or otherwise discriminating against an employee age 40 or older, simply based on the employees age; under the ADEA an employer can’t deny an employee pay, nor can the employer discriminate in employee benefit plans such as health coverage, pension, or fringe benefits.  Employers are unable to unjustly classify employees into groups based on age in in a way that unfairly deprives workers of employment opportunities. ADEA defines employer as every individual, partnership, association, labor organization, corporation, business trust, legal representative, or organized group who is engaged in an industry affecting commerce; and has 20 or more employees (which may include overseas employees) for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. ADEA protects US citizens working for US employers operating abroad, except where it would violate the laws of that country. Be mindful that there must be an employer/employee relationship for the ADEA to be relevant; therefore independent contractors are not employees within the meaning of ADEA and are not entitled to its protections.

Most employers begin the employment process by advertising the job opening, because this is the beginning of an employment relationship, the advertisements used are subject to the ADEA which prohibits use of age referenced phrases such as: young, college student, age 25 to 35, boy, girl, age 40 to 50, retried person, or any others referencing age. The only exception is if age is a bona fide occupational qualification for the position advertised. Bona fide occupational qualifications in practice are limited to the obvious, i.e. hiring a young actor to play a young character; or when public safety is at stake, i.e. age limits for pilots and bus drivers. However, the request for the age or date of birth of an applicant on an employment application or use of the phrase “state age” on a want ad is not automatically a violation because there may be legitimate reasons for requesting the age or date of birth of an applicant, but will be closely scrutinized by the EEOC. As an employer your concerns with ADEA don’t end with your want ad, they only begin.  Under ADEA it is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age. However, employers can take action based on “reasonable factors other than age”, and employers can discharge or discipline an employee for “good cause,” regardless of the employee’s age. It is also unlawful for employers to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age. While an employer may not deny benefits to an employee based on age, an employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing full benefits to younger workers. Mandatory retirement has been prohibited in most sectors under ADEA since 1978; however, mandatory retirement based on age is permitted for certain bona fide executive or high policymaking employees over 65 and who have occupied a high policy position for at least 2 years preceding retirement and are entitled to immediate non-forfeitable annual retirement benefits from a designated plan of at least $44,000. In addition to hiring, firing, benefits, retirement, and other employment practices covered by ADEA, employers must also be aware that under ADEA it is unlawful to harass a person because of his or her age. Harassment can include, for example, offensive remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. For issues arising from ADEA, the EEOC borrows the remedies and damages provisions from the FLSA including back pay of wages, salary, and fringe benefits; attorney’s fees may be awarded to the prevailing party; liquidated damages are given where willful violation occurs; front pay; and injunctive relief, such as reinstatement.

The Age Discrimination in Employment Act provides strict guidelines regarding age discrimination in the workplace, but ultimate decisions regarding the ADEA are in fact legal matters that are overseen by the EEOC and decided within the courts. HR Strategies is here to assist our clients in matters regarding age discrimination and the ADEA, by providing relevant information based upon legal counsel provided to us on how ADEA affects each individual business, and to help keep you in compliance. We are hopeful that this synopsis of the ADEA has provided you with insight into the statute itself, and how you can take precautionary steps to remain compliant.

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