Age discrimination involves the unlawful denial of employment, promotions or benefits to employees based upon their age. If you believe that you have been subjected to discrimination due to your age, you may be able to secure relief under state or federal law, including the Age Discrimination in Employment Act of 1967 (ADEA). You may also benefit from similar protections under state law.
Age discrimination protections are based upon allegations that an employee or applicant suffered discrimination for being "too old for the job". It is ordinarily legal to discriminate on the basis that somebody is "too young for the job".
Anti-discrimination protections normally apply to both job applicants and to employees at any stage of employment, including the initial hiring decision, promotions, layoffs or RIFs, compensation, benefits, job assignments, training, or termination of employment. The ADEA extends protections to employees, against retaliation for filing age discrimination charges, for participating in an investigation or litigation under the ADEA, or for testifying in related proceedings.
If you are forty years of age or older, and the employer engaging in discrimination has twenty or more employees, you may be able to obtain relief under the ADEA. The ADEA applies to both private and governmental employers. The conduct of smaller employers may be regulated by similar state anti-age discrimination laws.
An employer may, under certain circumstances, ask that employees waive their rights under the ADEA. Examples of situations in which an employer might request an ADEA waiver include:
Settlement of an ADEA Claim: When settling a claim of age discrimination with an employee, the employer may request a waiver of claims covered by the settlement.
Severance Agreements: An employer may ask an employee to waive possible claims against the employer, including possible age discrimination claims, as part of an agreement for severance pay or benefits.
Exit Incentive Programs: When offering programs that give employees incentives to voluntarily end their employment, employers may ask for a waiver of discrimination claims including ADEA claims.
In order to be valid, a waiver of ADEA rights must be:
Not extent to claims that may arise based upon future events or conduct,
Be made in exchange for valuable consideration,
Advise employees of their right to consult an attorney before signing the waiver, and
Provide the employee not less than 21 days to consider the terms of the proposed waiver, and a period of not less than seven days after signing during which the waiver may be revoked.
If an employer makes this request, most employees will benefit from consulting with an attorney about their situation, their legal rights, and the consequences of signing a waiver before agreeing to sign the waiver.
An employer may lawfully request a date of birth with an application, but if that information is not necessary to the employer, such inquiries may lend support to an age discrimination claim. Depending upon the jurisdiction, it may also be possible for an employer to lawfully discharge workers as a age-neutral "cost cutting measure", even if the net result is that older workers are replaced by less costly younger workers.
Under limited circumstances an employer may be permitted to offer a different benefits package to older workers than to younger workers, as long as the cost of the reduced benefits package provided to older workers is no less than the cost to the employer of the package offered to younger workers.