Age Discrimination in Employment Act (ADEA)’s protections and limitations

1. Prohibited Conduct

a. Age discrimination

The Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits covered employers from engaging in age discrimination in employment. The ADEA now prohibits age discrimination against those who are 40 and older. In this regard, the ADEA specifically provides that it is unlawful for an employer “(1) to fail to 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; (2) 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.”

b. Retaliation

In addition to prohibiting age discrimination, the ADEA prohibits covered employers from retaliating against an employee who: (1) opposes any practice made an unlawful employment practice by the ADEA; or (2) makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing under the ADEA.

Until recently, it was an open question as to whether the federal-sector provision of the ADEA prohibited retaliation against employees who complain about age discrimination. With its 2008 decision in Gomez-Perez v. Potter, however, the Supreme Court held that federal employees were protected from retaliation based on the filing of an age discrimination complaint.

c. Harassment

Also prohibited by the ADEA is harassment because of an employee’s age.

d. Releases waiving ADEA claims

In order to protect individuals age 40 and over from settling their ADEA claims without a voluntary and knowing waiver, an amendment to the ADEA, the Older Workers Benefit Protection Act (“OWBPA”), imposes specific requirements for releases covering ADEA claims. If a release purporting to waive an ADEA claim does not strictly comply with these requirements, including the requirement to be written in a manner calculated to be understood, the release is ineffective with respect to the ADEA claims.

2. Proceeding with an ADEA claim

Like Title VII, in order to proceed on an ADEA claim, you generally must first exhaust your administrative remedies by filing a “charge alleging unlawful discrimination” with the Equal Employment Opportunity Commission (EEOC): (a) within 180 days after the alleged unlawful practice occurred; or (b) if the unlawful employment practice occurred in a deferral state (that is, a state in which the state Fair Employment Practices (FEP) agency has a work sharing agreement with the EEOC), within 300 days after the alleged unlawful practice occurred, or within 30 days after the individual receives notice of termination of proceedings under State law, whichever is earlier.

The Lilly Ledbetter Fair Pay Act broadens the types of occurrences that are unlawful employment actions for purposes of triggering a pay discrimination claim. It provides for an expanded filing time period.

In addition to exhausting all administrative remedies in a timely fashion, you must file your lawsuit within 90 days after the EEOC gives notice of the right to sue.

3. Affirmative defenses

Notwithstanding the ADEA’s general prohibition against age discrimination, covered employers are provided with certain defenses to liability for age discrimination, including taking any action otherwise prohibited where:

  1. Age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business;
  2. The differentiation is based on reasonable factors other than age;
  3. Such practices involve an employee in a workplace in a foreign country, and compliance with the ADEA would cause the employer, or a corporation controlled by the employer, to violate the laws of the country in which the workplace is located;
  4. To observe the terms of a bona fide seniority system that is not intended to evade the purposes of the ADEA;
  5. To observe the terms of a bona fide employee benefit plan; and
  6. To discharge or otherwise discipline an individual for good cause.

Finally, the ADEA does not protect younger workers (even those over the age of 40) from discrimination that works to the advantage of relatively older workers.