Age Discrimination in Employment Act
The ADEA is the primary federal statute that prohibits employers from discriminating against employees in terms, privileges and conditions of employment on the basis of age. The law also applies to employment agencies and labor organizations. To be covered by the ADEA, an individual must be 40 years old or older (there is no cap on an employee’s age to be covered by the ADEA).
There are several narrow exceptions to the ADEA’s anti-discrimination prohibition, including the following:
- It is not a violation of the ADEA where age is a bona fide occupational qualification (“BFOQ”) reasonably necessary to the normal operation of the particular business. See Western Air Lines, Inc. v. Criswell, 472 US 400, 105 S Ct 2743, 86 L Ed 2d 321 (1985); 29 C.F.R. § 1625.6.
- Where the distinction is based on reasonable factors other than age. The regulations recognize that “no precise and unequivocal determination can be made as to the scope of the phrase ‘differentiation based on reasonable factors other than age.’ Whether such differentiations exist must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.” See 29 C.F.R. § 1625.7.
- To observe the terms of a bona fide seniority system that is not intended to evade the purposes of the ADEA, except that no such seniority system shall require or permit the involuntary retirement of any individual because of age. See 29 C.F.R. § 1625.8.
- Certain bona fide executive or high policymaking employees are exempted from protection of involuntary retirement under the ADEA. A bona fide executive is 65 or over, has occupied a high policy position for at least 2 years preceding retirement & is entitled to an entitled to an immediate nonforfeitable annual retirement benefits from a designated plan of at least $44,000. See 29 C.F.R. § 1625.12.
- In defined situations, to observe the terms of a bona fide employee benefit plan.
Age Discrimination & Harassment
It is unlawful to harass a person because of his or her age.
Harassment can include, for example, offensive remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
In general, an individual must pre-file a charge with the EEOC within 180 days after the alleged unlawful practice occurred or within 300 days if a state age discrimination law (including remedies) exits.
A plaintiff may not file a civil action under the ADEA until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC (or, if earlier, 30 days after receipt of notice of termination of State proceedings). Unless excused by the court, an action must be filed within 90 days after reciept of a right-to-sue letter.
An employer (a person engaged in an industry affecting commerce) must have twenty or more employees for each working day in each of twenty or more calendar weeks (in the current or preceding calandar year) to be covered by the ADEA. An employee must be over age forty to be covered by the ADEA.
The ADEA borrows the remedies and damages provisions from the FLSA, which are as follows:
- Back pay is the most common form of relief. Back pay consists of wages, salary and fringe benefits employee would have earned during the period of discrimination.
- Attorney’s Fees may be awarded to the prevailing party.
- Liquidated damages are given where a willful violation occurs. Note that compensatory damages (recovery for pain and suffering, emotional distress, humiliation, or injury to professional reputation) and punitive damages are not remedies under the ADEA.
- Front pay may be awarded in certain cases. It is designed to restore victims to their “rightful place”. It compensates the victim for anticipated future losses.
- Injunctive relief may also be granted. Such relief might include reinstatement and an order to prevent future discrimination.