Discrimination in Employment Act
employment actions does the Age Discrimination In Employment Act prohibit?
The Age Discrimination in Employment Act (ADEA) prohibits employers from
discriminating against persons aged 40 years or older in hiring, discharge,
compensation, terms, conditions or privileges of employment. This includes
limiting, segregating or classifying an employee in a way that could deprive
an employee of an employment opportunity.
The U. S. Supreme Court has held that inaccurate stereotyping of the elderly
is "the essence of what Congress sought to prohibit in the ADEA."
The Court has further held that the ADEA "requires the employer to
ignore an employee's age...it does not specify further characteristics
that an employer must also ignore." Thus, where an employer bases
an adverse employment decision on the belief that older employees are
less efficient or less productive, the employer violates the ADEA.
On the other hand, when an employer bases a decision on factors other
than age, it does not violate the ADEA even if the motivating factors
are correlated with age such as pension status or years of service. Whether
an employer violates the ADEA thus depends on whether age actually motivates
the employer's decision.
an employer replace an employee aged 40 or older (for example, age 50)
with a younger employee who is also in the protected age group (for example,
It does not matter if the newly hired employee is 40 years of age or older
if the employer fired the first employee based on that employee's age.
The Supreme Court has cautioned, however, that an inference of age bias
"cannot be drawn from the replacement of one worker with another
worker insignificantly younger." According to most federal courts,
five years is a reasonable threshold establishing a significant gap for
the purpose of establishing age discrimination.
the ADEA impose an upper-age limit for coverage?
No, although the ADEA when originally enacted only protected employees
to the age of 70, Congress repealed that upper-age limit. The ADEA does
allow the imposition of age limits for certain professions if evidence
shows the ability to perform a particular job significantly diminishes
with age or imposes a danger to society. This type of limit is termed
a bona fide occupational qualification (BFOQ). Courts have interpreted
the ADEA as allowing the imposition of age limits on professions such
as airline pilot and bus driver because research shows ability to perform
these occupations decreases with age.
the ADEA permit an employer to establish a mandatory retirement age?
Because the ADEA imposes no upper-age limit for coverage, it generally
prohibits employers from requiring employees to retire at a certain age.
However, if an employer establishes a BFOQ, the ADEA allows the employer
to set a mandatory retirement age.
is age discrimination different from other types of discrimination?
In most ways, discrimination based upon age is no different than discrimination
based on other protected classes, such as race or sex. Courts have generally
established the following rules unique to age discrimination cases:
the same supervisor who recommended hiring an employee recommends firing
that employee within a year or so of employment, courts assume that
termination was not because of age. Courts believe that if a supervisor
discriminates against older people, he would not have recommended hiring
the employee in the first place;
an employer fires an employee in a reduction in force and does not replace
that employee, courts will require direct evidence of age discrimination,
such as remarks suggesting the employer should use the opportunity to
get rid of old people.
an employer establish minimum requirements for a job that disproportionately
impact individuals over the age of 40?
Generally yes, but only if a requirement relates to the essential functions
of a job. For example, a requirement that a maintenance department employee
lift 50 pounds on a regular basis probably relates to the functions of
that job, but the same requirement would not relate to the functions of
most sedentary jobs. An employer who imposes requirements for hiring that
do not relate to a job's essential functions and disproportionately impact
older workers, violates the ADEA.
a job-application process, can an employer require applicants to provide
information relating to an applicant's age?
Generally no, although an employer can request an applicant's number of
years of experience in the minimum requirements of the job. An employer
cannot ask questions directly relating to age, such as the date an applicant
graduated from high school, the date of the applicant's first employment
experience, or dates of military service.
the ADEA prohibit the use of age-related remarks by co-workers and supervisors?
federal court governing Arizona has held that general ageist comments
made by supervisors or other employees may demonstrate employer age bias.
Nearly all courts have held specific remarks aimed at older workers such
as "old and burnt out," or remarks suggesting older employees
do not fit the employer's mold of "young aggressive employees,"
may demonstrate employer age bias.
An employer should prohibit the use of age-related remarks by all employees,
whether or not they are supervisors.
does an employee establish an age-discrimination claim?
An employee may establish that an employer's motivation for unfavorable
treatment was age bias by direct evidence of discrimination or infer discrimination
by showing (a) the employee is aged 40 or older; (b) the employee performed
his job satisfactorily; (c) the employer terminated or demoted the employee;
(d) the employer filled the position with a younger employee.
does an employer show it did not discriminate based on age?
An employer can refute an employee's initial inference of age discrimination
by showing it based the employee's treatment on a legitimate nondiscriminatory
remedies does an employee have if an employer discriminates against that
employee based on age?
An employee may have a right to be hired, reinstated or promoted. An employee
may also be entitled to unpaid wages and liquidated damages.