Top 5 Things Every Employer Should Know About Age Discrimination

Jonathan Sparks | March 7th, 2018

As the bulk of the American workforce ages, it is increasingly important for employers to understand the protections afforded to older employees. The Age Discrimination in Employment Act (“ADEA”) is a federal law that protects employees over 40 from employment discrimination based on age. The ADEA affects employment practices at nearly every step – from posting a job opening, to interviewing applicants, to offering benefits, to terminating an employee. State laws also impose a variety of requirements, some more strict and some less strict than those imposed by the ADEA. Employers should review their business practices to ensure compliance, and keep the following 5 things in mind:

  1. The ADEA does not apply to all employers

The ADEA only applies to employers with 20 or more employees. It also applies to employment agencies, labor organizations, and the federal government.

  1. The ADEA does more than protect employees from age-based discrimination

Age-based discrimination against employees is the first thing most employers associate with the ADEA, but, in fact, its protections go further. The ADEA also:

  • Scrutinizes pre-employment inquiries about age. Since such inquiries could deter older workers from beginning or continuing the application process and/or may signal an intent to discriminate based on age.
  • Requires employers to spend the same amount of money for benefits to all employees. Due to the fact that providing certain benefits to older employees can be more expensive than providing the same benefits to younger employees, an employer may in some circumstances reduce benefits based on age as long as the same amount of money is spent on all employees.
  • Protects apprentices. The ADEA usually prohibits apprenticeship programs from discriminating on the basis of an individual’s age. Some exceptions are allowed under the law and by the Equal Employment Opportunity Commission.
  • Applies to job notices and advertisements. It is usually unlawful to include age preferences, limitations, or specification in job notices or advertisements. An employer may include an age limit only when it is a “bona fide occupational qualification” reasonably necessary to the employer’s operation.
  1. Employees can waive their ADEA rights

Employers can ask employees to waive their rights or claims under the ADEA when settling a claim or in connection with employment termination. However, certain minimum standards must be met for a waiver to be valid. In addition to other requirements, a waiver must:

  • be given in exchange for valuable consideration, that is, in exchange for something of value;
  • not waive any rights or claims that could arise in the future;
  • advise the employee in writing to consult an attorney before signing;
  • give the employee at least 21 days to consider the agreement and at lease 7 days to revoke the agreement after signing;
  • specifically refer to ADEA rights or claims; and
  • be in writing and be understandable.
  1. Employers can favor older workers under the ADEA

The ADEA protects older workers, but does not extend any protection to younger workers. So, an employer is permitted to favor an older worker based on age even if doing so has a negative impact on a younger worker, even if the younger worker is 40 or older.

  1. Some states have their own age-discrimination laws

Some states have enacted laws that prohibit age-discrimination. These laws may be stricter than the ADEA’s requirements, and, even where they are less strict, expose employers to liability under state as well as federal law. For example, Georgia Code § 34-1-2 prohibits discrimination against an individual between the ages of 40 and 70 in connection with hiring, employment, and licensing, provided that the individual “is qualified physically, mentally, and by training and experience to perform” the work. California’s Fair Employment and Housing Act, meanwhile, makes it illegal for employers of 5 of more employees to discriminate against applicants and employees because of age. Other states have their own laws, and it is important for employers to be aware of any additional or different requirements these may impose.

Because the ADEA has specific requirements for job postings, benefits, and waiver language, and because states have their own anti-age discrimination laws, it is well worth any employer’s time and money to consult with an attorney to ensure compliance. Sparks Law can help your business avoid claims related to age-discrimination.

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