Are there situations in which an employer can favor older workers or younger workers?

Author: Shannon C. Johnson

Maybe, depending on the circumstances. The Age Discrimination in Employment Act (ADEA) generally prohibits employers from favoring younger workers over older employees by prohibiting unfavorable treatment in hiring, firing, pay, job assignments promotions, layoffs, training, fringe benefits, and any other condition of employment of any employee 40 years or older on the basis of their age. There is no federal protection for employees that are younger than 40. However, employers should be aware that some states do offer discrimination protection for workers under the age of 40 and some states permit reverse age discrimination claims. However, there are exceptions to the ADEA's prohibition against age discrimination such as:

  • Reasonable factor other than age (RFOA) - An employer may make an employment decision based upon a reasonable factor other than age (such as the employee's performance or qualification for the position)
  • Bona fide occupational qualification - An employer may take age into consideration where an individual's age is reasonably necessary to the normal operation of that particular business or enterprise.
  • An employer may take age into consideration in order to comply with a bona fide seniority system, a bona fide employee benefit plan or early retirement plan.

Further, it is not illegal for an employer to favor an older worker over a younger one, even if both workers are age 40 or older.