Numerous federal, state, and local laws in the US prohibit employers from making employment decisions based on an employee’s or job applicant’s age and thus protecting employees from being discriminated against based on their age.

The Age Discrimination in Employment Act of 1967, also known as the ADEA, is the federal law which prohibits age discrimination in the workplace.

The ADEA applies to employers with 20 or more employees. In addition, The Older Workers Benefit Protection Act (“OWBPA”) amended the ADEA to prohibit age discrimination concerning older workers’ employee benefits such as severance and require that any waiver of an employee’s ADEA rights be knowing and voluntary.

However, as discussed below, many state and local government laws offer employees broader protection against age discrimination than the ADEA.

The New York Executive law and the Administrative Code of New York, the state and city anti-discrimination laws, for example, prohibit employers with four or more employees from engaging in age discrimination. The California Fair Employment and Housing Act prohibits discrimination by employers with five or more employees. The District of Columbia Human Rights Act’s prohibits age discrimination by all employers, regardless of the number of employees. Other state and local laws may apply to employers of various sizes as well.

What is the definition of age?

The ADEA protects individuals who are 40 years and older from employment discrimination based on age.

The ADEA has been also interpreted to permit employers to favor older workers based on their age even if doing so adversely affects a younger worker. However, state or local laws may prohibit this practice as they may differ on the definition of age.

As examples, the New York Executive Law and the District of Columbia Human Rights Act protects individuals who are 18 and older from discrimination based on their age. Other state and local laws may provide for different definitions of “age” as well.

What is age discrimination in the workplace?

Age discrimination in the workplace can take many forms throughout the employment process. An employer may not refuse to hire, or screen out, a job applicant based on his or her age.

Once an individual is hired, an employer may not make decisions affecting an employee’s job based on his or her age such as job assignments, promotions, selection for training programs, transfers, compensation, benefits, and other terms, conditions or privileges of employment.

Finally, an employer is prohibited from terminating an employee’s employment because of his or her age. Age discrimination can also take the form of a hostile work environment based on age as well as making decisions based on discriminatory stereotypes of persons at a certain age, among other things.

Employees’ Release of Age Discrimination Claims

Often when an employee who is age 40 or older is terminated from his or her employment, the employer may ask the employee to waive his or her rights to pursue an age discrimination claim in a release in exchange for consideration in the form of severance.

The ADEA and OWBPA have set forth specific requirements that a waiver must include in order to be “knowing and voluntary” and thus valid.

These requirement include that the waiver:

  1. be in writing and be understandable;
  2. specifically refer to ADEA rights or claims;
  3. not waive rights or claims that may arise in the future;
  4. be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled;
  5. advise the individual in writing to consult an attorney before signing the waiver; and
  6. 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 or other employment termination program, the minimum requirements for a valid waiver are more extensive including, but not limited to, required at least 45 days to consider  the agreement, and providing the employee with specific information of the eligibility factors used in selecting employees for the incentive or termination program as well as the ages of those selected and not selected.

Remedies

Employees who believe they have been unlawfully discriminated against based on their age can maintain a private right of action against the employer in court.

Before filing a lawsuit in court, however, an individual claiming age discrimination must first exhaust his administrative remedies by filing a charge of discrimination either with the Equal Employment Opportunity Commission or an equivalent state or local agency.

This charge must be filed either within either 180 days or 300 days, if the state in which the alleged unlawful discrimination occurred has a law prohibiting age discrimination and a state agency or authority enforcing that law. Employees may seek back pay, front pay, and liquidated damages.

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