Age discrimination (ADEA)
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.
The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Waivers of ADEA Rights
An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:
- be in writing and be understandable;
- specifically refer to ADEA rights or claims;
- not waive rights or claims that may arise in the future;
- be in exchange for valuable consideration;
- advise the individual in writing to consult an attorney before signing the waiver; and
- provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.
If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.
If you have any questions, inquiries or desire representation with regard to any of these types of claims, please send your questions to rsneed@fosterfoster.com
For more information about:
- Age discrimination (ADEA)
- Disability discrimination and hostile work environment (ADA and Rehabilitation Act)
- Discrimination or hostile work environment based on race, color, sex, gender, national origin, ethnicity, or religion (Title VII)
- Employment contract disputes (dual) Equal Employment Opportunity Commission (EEOC) and South Carolina Human Affairs Commission (SCHAC)
- Equal Pay Act (EPA)
- Family Medical Leave Act Claims (FMLA)
- Military leave laws (USERRA) and veteran discrimination (Sneed)
- Occupational Safety and Health Administration (OSHA)
- Pregnancy discrimination
- Retaliation, whistleblower, and free speech violations (dual)
- Severance package review, layoff and reduction in force (RIF) agreement review and negotiation (dual)
- Sexual harassment and hostile work environment (Title VII)
- Wage disputes, including: overtime, minimum wage, bonus, and vacation issues Fair Labor Standards Act (FLSA), the SC Wage Payment Act (dual)
- Worker Adjustment and Retraining Notification Act (WARN)
- Wrongful discharge or wrongful termination in violation of public policy
