Age Discrimination in Employment Act

AGE DISCRIMINATION IN EMPLOYMENT ACT TEXT

What is the Age Discrimination in Employment Act?

The Age Discrimination in Employment Act (ADEA) prohibits any employer from refusing to hire, discharge, or otherwise discriminate against any individual because of age. The act pertains to the discrimination of individuals over the age of 40. The Age Discrimination in Employment Act specifically deals with discriminatory policies involving employers, employment agencies and labor organizations. It covers compensation as well as employee benefit plans, health coverage and pensions.

Background

The Age Discrimination in Employment Act was created as a direct result of the passage of Title VII of the Civil Rights Act. Title VII specifically prohibits discrimination in employment based on race, sex, national origin or religion. In 1965 the Equal Pay Act instructed the secretary of labor to perform a study to recommend policy decision for "legislation to prevent arbitrary discrimination in employment because of age." The report found that discrimination due to age did exist; yet not at the level of that based on sex or race. The report found that the discrimination in age resulted from beliefs that age had an effect on the ability of a person to perform his or her job and did not necessarily consider the abilities of the individual, thus leading to "arbitrary discrimination."

Upon the conclusion of the study Congress enacted the Age Discrimination in Employment Act to "promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.”

What practices are forbidden by the Age Discrimination in Employment Act?

Individuals covered by the Age Discrimination in Employment Act cover most individuals over the age of 40 years old. It applies to employees, applicants for employment or former-employees in both the private and public sector. There are exceptions to the rule. For example; compulsory retirement for bona fide executives or policy makers who are 65 or older and are entitled to pension benefits of $44,000 or more are exempt from age discrimination protection. Individuals who are employed by state or local governments as firefighters and police officers may also be subject to state mandated early retirement. The Age Discrimination in Employment Act also applies to federal employees except federal civil service employees who are air traffic controllers, firefighters, law enforcement officers, nuclear materials couriers, and customs and border protection officers.

What employment practices are prohibited under the Age Discrimination in Employment Act?

The ADEA's primary provision forbids discrimination because of age in hiring, placement, promotion, demotion, transfer, termination, and discipline. It also prohibits age discrimination with respect to all terms and conditions of employment and discrimination in referrals by employment agencies, actions by unions, and retaliation against employees for filing or participating in an ADEA claims or for opposing an employer’s discriminatory practices. Discrimination regarding salary, leave, and other benefits may also violate the act.

The Age Discrimination in Employment Act does not prohibit reverse discrimination. Reverse discrimination is when employers discriminate against younger employees such as the hiring of an individual who is over 40 years old instead an individual outside of the protected class.

Discrimination does not include the favoring of an employee in the protected class over another employee in the protected class. For example, if a company hires an individual who is 40 years old over an individual who is 60 the older individual will not be able to maintain a claim for discrimination under the Age Discrimination in Employment Act.

Age discrimination also applies to advertisements for employment. It is strictly forbidden to list age preferences in advertisements, such as "25 or younger" or "under 40." Unlike discrimination in hiring, discrimination in advertising can be actionable when the advertisement discriminates against members within the protected class. For example, it is unlawful to advertise that an employer seeks "individuals 50 or older." This is discriminatory against those individuals, protected by the ADEA that are under 50 years of age.

What businesses doe the Age Discrimination in Employment Act cover?

The ADEA covers individuals, partnerships, labor organizations and employment agencies, and corporations that: 1) engage in an industry affecting interstate commerce and 2) employ at least 20 individuals. The act also controls state and local governments. Referrals by an employment agency to a covered employer are within the ADEA's scope regardless of the agency's size. In addition, the ADEA covers labor union practices affecting union members; usually, unions with at least 25 members are covered. The ADEA protects against age discrimination in many employment contexts, including hiring, firing, pay scales, job assignments, and fringe benefits.

How to file an age discrimination action?

If one wishes to file a complaint involving age discrimination in the work place he or she must file a complaint with the Equal Employment Opportunity Commission. On the other hand, the government may also file its own grievance with the EEOC if it deems that the employer is engaging in prohibited age discrimination. The EEOC must be notified within 180 days of an alleged discrimination or else the protections are deemed to be waived concerning that particular incident.

A complaint to the EEOC must contain an ADEA complaint must, at a minimum: be in writing; name the prospective respondent; and generally allege the discriminatory acts. In addition to these regulatory requirements, EEOC policy states that a filing, in order to be deemed a charge, must contain a request for agency action to remedy the alleged age discrimination.

Upon receiving a complaint the EEOC shall notify all persons named in the complaint as prospective defendants in that action and attempt to eliminate the alleged unlawful practice by informal methods. If the matter is left unresolved after informal negotiations within 60 days then the plaintiff may file a suit in federal court. If the individual wishes to wait for a determination from the EEOC he or she will have 90 days once notified of the EEOC's determination.

Filing a Civil Suit for violations of the Age Discrimination in Employment Act

There is a statute of limitations associated with all claims of age discrimination. An individual filing a claim has a 3 year statute of limitations that begins to run on the date that the willful discriminatory behavior occurred. If the act taken by the employer was one of un-willful discrimination then it a 2 year statute of limitation is imposed that begins to run from the date of the discriminatory activity.

If a federal court finds that an employer, labor organization, or employment agency has acted in a discriminatory manner the court can award remedies that may include: injunctions; compelled employment; reinstatement; promotion; and back pay. In addition, a willful violation of the act gives rise to liquidated damages, which are generally computed by doubling the amount awarded to the plaintiff. An individual who has been found to have been a victim of age discrimination may also receive attorney's fees and costs.

What are an employer's defenses to allegations of age discrimination?

There are a number or defenses to an age discrimination action that an employer may assert. The most common of these is that an employer will not be deemed to have violated the act when the action taken against an employee is due to a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” Under this definition an employer must justify an age-based employment requirement by demonstrating: that the requirement is reasonably necessary to the essence of its business; and that an individualized approach would be pointless or impractical. It is also not a violation of the Age Discrimination in Employment Act to discharge an employee for good cause.

In both of these defenses, an employer asserts that its adverse action did not involve age discrimination but rather was based on some other factor. Such factors may include job performance, business cutbacks, or lack of qualifications, among others. In addition, the Court has held that employers may, without violating the ADEA, make employment decisions based on cost factors that are highly correlated with age, such as pensions or high salaries, as long as their actions are not actually based on age.

The Age Discrimination in Employment Act also explicitly allows voluntary early retirement as an incentive of employee benefit plans. If it costs more to provide the same benefit to the protected class, the employer has the option of paying the same amount for benefits of the protected class as it does for employees outside of the protected class.

Age discrimination is a troubling problem in the United States. Elderly individuals are often denied employment or are treated unfairly by employers. In order to address this serious issue, Congress passed the Age Discrimination in Employment Act in 1967. The ADEA is federal legislation that prohibits age discrimination by employers. It forbids employers from discrimination against any individual over the age of forty based upon his/her age.

The ADEA attempts to address the prejudice being faced by the aging population in regards to employment. The Age Discrimination in Employment Act outlaws ageism in any area of employment. This includes job advertisements, as well as hiring, promoting, firing, and laying off employees. Therefore, under the Age Discrimination in Employment Act, an employer may not advertise age preferences for employees.

He/she is also prohibited from setting an age limit for employment. The ADEA forbids employers from refusing to provide an elderly employee with benefits. If an elderly individual applies for a job or a promotion and is qualified for the position, an employer can not deny the applicant this position because of his/her age.

As a result of the ADEA, companies are no longer permitted to require mandatory retirement once an employee reaches the age of 65. The only exception to this legislation is the mandatory retirement of individuals that have reached the age of 65 and are employed as policy-makers or executives. In instances such as this, the ADEA requires these individuals to be provided with the pensions they were promised as a condition of their employment

The Age Discrimination in Employment Act has developed specific guidelines regarding who/what constitutes an employer and who is considered to be an employee. In order for an individual to be considered an employer under the ADEA, he/she must employ at least twenty individuals and be involved in a type of commerce that has an impact on a specific industry. The large majority of employees are protected by this federal legislation. However, some occupations, such as independent contracting, are excluded from the Act.

Many state governments have also chosen to develop legislation outlawing age discrimination. It is common for state laws to enforce more restrictions than the Age Discrimination in Employment Act itself.

Despite the positive intentions behind the ADEA, though, there are many inherent problems and complications that accompany this piece of legislation. For one, regardless of the fact that an employer is prohibited from refusing employment to an individual based on his/her age, an employer is permitted to fire or deny employment to an elderly individual if the employer has "good reason" to do so. Therefore, an employer may continue to practice age discrimination against elderly individuals under the guise of reasonably dismissing an individual from employment.

To boot, the Age Discrimination in Employment Act address employment discrimination faced by elderly individuals, but does nothing to combat the prejudice faced by young individuals.

The Full Guide to the Age Discrimination in Employment Act

The Age Discrimination in Employment Act of 1967, sometimes shortened to just ADEA, was a law passed by Congress as a part of its extensive legislative action on employment discrimination during the 1960s and 1970s. Congress was very concerned with frequent incidents of age bias and discrimination in the workplace and because of it, they enacted the Age Discrimination in Employment Act as the next amendment to the 1938 Fair Labor Standards Act. The Age Discrimination in Employment Act is essentially the counterpart to Title VII of the Civil Rights Act (1964).

The Age Discrimination in Employment Act of 1967 specifically protects employees 40 years of age and older and certain applicants from age-based discrimination regarding employment decisions like hiring, discharge, promotion, compensation, or conditions, terms, or privileges regarding employment. The act also prohibits this discrimination regarding benefit programs and retirement plans. The Age Discrimination in Employment Act is enforced specifically by the Equal Employment Opportunity Commission.

Since the enactment of the Age Discrimination in Employment Act, many courts have dealt with many issues regarding the act in the general context of higher education, from denial or dismissal of tenure to early retirement incentive plans and salaries.

General Provisions of the Age Discrimination in Employment Act

The Age Discrimination in Employment Act is the primary federal statutory solution for victims who experience age discrimination in the workplace. The Age Discrimination in Employment Act prohibits employers with at least 20 employees from discriminating against them or prospective employees or applicants due to their age in the hiring, promotion, transfer, demotion, or dismissal process as well as discrimination in conditions of employment, such as compensation or benefit plans. The Act also makes it against the law for employers to react against prospective or current employees who oppose practices that are unlawful under the statute through filing suits or complaints or through participating in proceedings, litigations, or investigations under the far-reaching provisions of the act.

The federal Equal Employment Opportunity Commission enforces the provisions of the Age Discrimination in Employment Act on an administrative level. Individuals who have experienced age-related discrimination must file charges with the Equal Employment Opportunity Commission, which then notifies potential defendants. The commission then works to eliminate any alleged unlawful actions first through informal negotiations before relying on civil judicial actions. The Age Discrimination in Employment Act authorizes courts to grant equitable relief to plaintiffs, such as back pay, reinstatement, attorney’s fees, and damages.

Initially, the Age Discrimination in Employment Act applied to workers between the ages of 40 and 65 but the act did not apply to state agencies. Congressional amendments were made to extended the scope of the Age Discrimination in Employment Act to state governments and political subdivisions of the state, including public universities and colleges. In 1983, the Supreme Court upheld the extension’s constitutionality against a challenge of the Tenth Amendment immunity in EEOC v. Wyoming. The United States Congress also eliminated the upper age limit of the amendment for all except a few different employment categories. An example of this is how the Age Discrimination in Employment Act does not prohibit compulsory retirement for law enforcement officers, firefighters, and sometimes for bona fide executives or others in high policy-making positions.

Inclusions to the Age Discrimination in Employment Act

The Age Discrimination in Employment Act effectively applies to all employers with 20 or more employees, in the state and local government as well as labor organizations and employment agencies, along with the federal government. The Age Discrimination in Employment Act protections cover the following issues:Apprenticeship Programs

It is usually unlawful for apprenticeship programs, such as joint labor-management apprenticeship programs, to discriminate against an individual on the basis of age. Age limitations that are found in apprenticeship programs are legally allowed if the limitation falls within specific exceptions listed under the Age Discrimination in Employment Act or if the Equal Employment Opportunity Commission grants the specific exemption.

Job Notices and Advertisements

The Age Discrimination in Employment Act usually makes it unlawful to include any age limitations, specifications, or preferences in advertisements or job notices. An advertisement or job notice can specify an age limit in the rare situation where age is proven to be a bona fide or legitimate occupational qualification that is reasonably needed for the normal operation of the company.

Pre-Employment Inquiries

The Age Discrimination in Employment Act does not explicitly prohibit an employer from asking about the age or date of birth of an applicant. However, because these inquiries can deter older workers from applying for a position or can otherwise suggest the possibility of discrimination based on age, any requests for information about age will be closely looked at to ensure that the inquiry was done for a lawful reason, rather than a reason prohibited by the Age Discrimination in Employment Act.

Benefits

The 1990 Older Workers Benefit Protection Act amended the Age Discrimination in Employment Act in order to prohibit employers from giving benefits to older employees. Congress realized that the cost of giving certain benefits to older workers is more than those of younger workers, which may create an incentive to hire younger workers. Because of this, in certain circumstances, an employer can be allowed to reduce benefits because on age, as long as the reduced benefits’ cost is the equal to the cost of those for the younger workers. Employers are also allowed to coordinate health benefit plans for retirees who have eligibility for Medicare or a similar state-sponsored healthcare benefit.

Exceptions Found in the Age Discrimination in Employment Act

There are numerous exceptions to the Age Discrimination in Employment Act’s nondiscrimination provisions. First off, employers can use age as an employment criterion only if the employer can justify the use. In other words, the employer must prove that an employee’s age is a genuine and bona fide occupational qualification that is reasonably necessary for the normal operation of the specific business or position. Because of this exception, employers must be able to show that an employee’s age is a good or reasonable point for a job qualification which is necessary for the employer's business. Courts have interpreted this exception very narrowly when looking at the general age discrimination prohibition found in the Age Discrimination in Employment Act.

The second exception in the Age Discrimination in Employment Act applies specifically to employee benefit plans, for example pension plans and health insurance plans. It costs more to the employer to provide these fringe benefits to older workers as opposed to providing these benefits to younger employees who often have fewer health problems or are not planning to retire yet. The application of the Age Discrimination in Employment Act to pension plans and related fringe benefits is extremely complicated and technical. This exception has been the subject of a lot of congressional activity and litigation.

Currently, this statute in the Age Discrimination in Employment Act allows a fringe benefit plan that provides different benefits for different age groups only if the differences have been properly justified by employer costs or if they are a part of a voluntary plan for early plan. For example, an employer may provide an employee with $2000 of health insurance even of that amount does not buy as much protection for the older employees.

The third exception of the Age Discrimination in Employment Act is that the act does not consider political appointees or elected officials responsible for policy making in a way that employees would. Although the Age Discrimination in Employment Act was explicitly amended to prohibit mandatory retirement, this except does allow mandatory retirement at the age of 65 of employees in high, policy-making positions or other executives. As an effort to ensure public safety, another specific amendment can be found in the Age Discrimination in Employment Act that creates a maximum age of employment and a mandatory retirement age of 55 for publicly employed law enforcement officers and firefighters.

Waiving the Age Discrimination in Employment Act Rights

An employer can ask an employee to waive his or her claims or rights under the Age Discrimination in Employment Act either in the settlement of an administrative or court claim or regarding a connection to an employment termination program such as an exit incentive program. However, the Age Discrimination in Employment Act sets out explicit minimum standards that have to be reached in order for a waiver to be thought of as knowing and voluntary and, consequently, valid. In order for a waiver to be valid under the Age Discrimination in Employment Act , it must satisfy the following conditions:

The waiver must be writing and understandable.

The waiver must specifically refer to Age Discrimination in Employment Act claims or rights.

It cannot waive claims or rights that may come up in the future.

The waiver must be in exchange for some valuable consideration;

It must advise the individual in writing to discuss the situation with an attorney before being signed.

The waiver must state the individual has at least 21 days to consider the agreement as along with at least 7 days to revoke it after signing the waiver.

If an employer requests from an employee an Age Discrimination in Employment Act waiver in regards to an exit incentive program or another employment termination program, there are more minimum requirements to obtain a valid waiver that are more extensive.

Remedies under the Age Discrimination in Employment Act

The Age Discrimination in Employment Act borrows the damages and remedies provisions from the Fair Labor Standards Act, which include the following:Back pay is the usual form of relief for a plaintiff. This includes fringe benefits, salaries, and wages that an employee should have received during the discrimination period.

The Attorney’s Fees can be awarded to the prevailing party of a case.

Liquidated damages are awarded if a willful violation of the act occurs. It is important to note that compensatory damages and punitive damages are not considered remedies under the Age Discrimination in Employment Act.

Front pay can also be awarded in certain circumstances. The point of this award is to restore victims to their rightful place by compensating the victim for anticipated future financial losses.

Injunctive relief can also be granted, such as reinstatement or an order to stop future discrimination.

Other Federal Laws Affecting the Age Discrimination in Employment Act

In 1990, the United States Congress further expanded the reach of the Age Discrimination in Employment Act through passing the Older Workers Benefit Protection Act as a means to further guarantee that worker benefits would be properly protected from age-related discrimination.

The Lilly Ledbetter Fair Pay Act was another act that was signed into law in January 2009. This act changes when the statute of limitations for a workers’ claims case regarding pay discrimination as expressed under the Age Discrimination in Employment Act and Title VII of the 1964 Civil Rights Act begins. It also states that an unlawful employment practice happens not only if a discriminatory pay practice or decision is accepted but also once the employee is subject to the practice or decision, along with as each further application of that practice or decision occurs. In other words, this is applicable each time compensation is paid to an employee.

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