Fact Sheet: Age Discrimination

This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.

This document addresses rights and responsibilities under the Age Discrimination in Employment Act, which prohibits discrimination by covered employers based on age 40 and over.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Who the ADEA Protects

The Age Discrimination in Employment Act of 1967 (ADEA) protects applicants and employees who are 40 years of age or older from employment discrimination based on age.

Who the ADEA Covers

The ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government.

Actions Prohibited By the ADEA

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited.

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 permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

ADEA protections also include:

• Advertisements and Job Notices
  
  The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of the business.
• Apprenticeship Programs
  
  It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.
• Pre-Employment Inquiries
  
  The ADEA does not explicitly prohibit an employer from asking an applicant's age or date of birth. However, such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, contrary to the purposes of the ADEA. If the information is needed for a lawful purpose, it can be obtained after the employee is hired.
• Benefits
  
  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 might create a disincentive to hire older workers. In limited circumstances, an employer may be permitted to reduce certain benefits based on age, as long as the cost the employer incurs to provide those benefits to older workers is no less than the cost of providing the benefits to younger workers.
  
  Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.
• Waivers of ADEA Claims or Rights
  
  The ADEA sets specific requirements that permit waivers of claims or rights in certain circumstances. Waivers are common in settling discrimination claims or in connection with exit incentive or other employment termination programs. To be valid, the waiver must meet minimum standards to be considered knowing and voluntary. 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 in addition to anything of value to which the individual already is entitled;
  • advise the individual in writing to consult an attorney before signing the waiver; and
  • provide the individual with a certain amount of time to consider the agreement before signing:
    • For individual agreements, at least 21 days,
    • For "group" waiver agreements, at least 45 days,
    • For settlements of ADEA discrimination claims, a "reasonable" amount of time.