Overview: While the Age Discrimination in Employment Act (ADEA) only protects individuals who are 40 years of age and older from employee discrimination, some state laws, such as those in New York, New Jersey and the District of Columbia, protect individuals who are 18 and older from age discrimination. Age discrimination often arises when individuals receive unfair treatment in the workplace because of the mistaken belief that an older individual will not perform as well. As a result of this, an employer should avoid any preemployment inquiries or employment decisions that are based solely on an individual's age, and be careful about neutral workplace rules and practices that negatively affect older workers. Further, the issue of age discrimination also comes into play when considering the issue of retirement age.
An employer should recognize that it is permissible to differentiate on the basis of age if age is a bona fide occupational qualification. For example, an employer can discriminate based on age if individuals of a certain job cannot perform the essential job functions in a safe manner.
Employers should also be aware of the fact that there are special requirements with regard to the waiver of ADEA claims in settlement agreements and releases under the Older Workers Benefit Protection Act.
Trends: Employers should be aware that the EEOC recently issued a new rule which will make it harder for employers to establish that policies that discriminate based on age were justified based on a legitimate business reason and based on a reasonable factor other than age. It will require employers to show that they have a stated business purpose as well as that the employer considered and sought to reduce the impact of the policy on older workers. The EEOC has also identified protecting older workers as one of its priorities in its Strategic Enforcement Plan.
Employers also may reasonably anticipate a greater number of age discrimination lawsuits with the aging Baby Boomer population.
Author: Beth P. Zoller, JD, Legal Editor
Updated to reflect additional EEOC guidance regarding discrimination based on national origin, age and pregnancy.
New York City employment attorney Jason Habinsky discusses ways to handle the biggest return-to-work dilemmas facing employers.
The Equal Employment Opportunity Commission (EEOC) hosted a webinar providing valuable advice and answers to employers' Frequently Asked Questions concerning COVID-19 and compliance with federal antidiscrimination laws.
The EEOC has released determinations finding seven corporations posted Facebook job advertisements that discriminated against women and older workers.
At its 2019 annual conference and exposition, SHRM reinforced its call for employers to increase hiring and inclusion of underrepresented groups.
XpertHR offers many tools and resources to help an employer address age discrimination and manage older workers.
With a growing US labor shortage and skills gap, Society for Human Resource Management CEO Johnny C. Taylor Jr. is urging employers not to ignore applicants with criminal backgrounds or older workers.
The 7th Circuit Court of Appeals has ruled that the Age Discrimination in Employment Act (ADEA) does not extend to outside job applicants who bring disparate impact discrimination claims.
This briefing for supervisors examines the law and best practices for avoiding age discrimination in the workplace.
In-depth review of the spectrum of Georgia employment law requirements HR must follow with respect to recruiting.
HR guidance on policies and practices to combat age discrimination in the workplace.