Age Discrimination

Another source of federal labor law is the Equal Employment Opportunity (EEO) laws. The Age Discrimination in Employment Act (ADEA) of 1967 protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. This Act is codified under 29 C.F.R Part 1625: Age Discrimination in Employment Act which can be Viewed in its entirely at EEOC’s site. Some of the nuances of the Act which could result in unwanted litigation are as follows:

1. Although the Act does not specifically prohibit asking an applicant what his or her age might be, that line of inquiry may have the affect of discouraging older workers (and sometimes younger workers too) from applying to the job. Such inquiries could then trigger and inquiry or even a lawsuit to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA. Attorneys at Employment Law Team ™ can assist employers and employees in Orange County, Los Angeles County, Riverside County, San Bernardino County, San Diego County look into such claims to ensure full compliance with the Act.
2. The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business. Employers should contact the Employment Law team ™before posting their job notices if they believe that such requirement is needed.
3. One of the most confusing aspects of the ADEA is the requirements dealing with a terminated of laid off employees decision to sign a severance package or a release. An employer may ask an employee to waive his/her rights or claims under the ADEA ( waiver of ADEA rights) either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:
   • be in writing and be understandable;
   • specifically refer to ADEA rights or claims;
   • not waive rights or claims that may arise in the future;
   • be in exchange for valuable consideration;
   • advise the individual in writing to consult an attorney before signing the waiver; and
   • provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.

If you are offered a release which could waive your ADEA rights or you are an employer desiring to draft such release in Orange County, Los Angeles County, Riverside County, San Bernardino call (888) 529-2188 for a free consultation with an attorney well versed in ADEA.