You probably know that it’s illegal to discriminate against older people in the workforce. But did you also know that there is a law that specifically targets age discrimination in the workplace?

It’s called the Age Discrimination in Employment Act (ADEA) and it specifically prohibits:

  • Specifying preferred age ranges or limitations in recruitment or job ads
  • Age limits for training programs and other benefits
  • Mandatory retirement ages (except in certain sectors, such as pilots)

The law also prohibits universal policies and practices that apply to all employees but have a predominately negative impact on older workers.

Fifty years ago when the law was enacted, writes Victoria A. Lipnic, Acting Chair of the U.S. Equal Employment Opportunity Commission, “The effects of the Great Recession were still being widely felt throughout the economy, and predictions were that it would take the nation 10 years or more to recover from steep job losses. At the EEOC, we were concerned that these job losses would hit older workers particularly hard.”

Nonetheless, age discrimination is alive and well.  In 2017, the EEOC received over 18,000 charges of age discrimination. That’s 1 in 5 of the discrimination charges received by the EEOC. Lipnic adds, “After 50 years of a federal law whose purpose is to promote the employment of older workers based on ability, age discrimination remains too common and too accepted. Indeed, 6 out of 10 older workers have seen or experienced age discrimination in the workplace and 90 percent of those say it is common.”

'Age discrimination is alive and well. In 2017, the EEOC received over 18,000 charges of age discrimination. That’s 1 in 5 of the discrimination charges received by the EEOC. 'Click To Tweet

That in mind, here are five critical things to know about the ADEA and age discrimination in the workplace:

1. The ADEA protects workers age 40 and over.

Forty might not seem old. But just watch this AARP video to see how many millennials believe anyone over 39 should be reaching for their flip phone and walker.

And if you are in an industry like advertising, entertainment, or tech, 40 is the new 60. Creative director Louis Loizou calls out the advertising industry for relegating anyone over 40 to brands like Werther’s Original in a recent blog post. So it’s never too early to know what legal protection you have.

2. The ADEA only applies to employers with at least 20 employees

The ADEA misses out on a LOT of people.  Over five million small businesses in the US had between 1 and 20 employees in the US in 2015, according to a report by the US Small Business Administration Office of Advocacy—none of them protected by the ADEA.

Thankfully, many states provide stronger protection for older workers than federal law and have additional laws that apply to employers with fewer than 20 employees. You can find out the minimum number of employees required by your state’s anti-discrimination law here: www.workplacefairness.org/age_statelaw.

3. The ADEA protects you during all stages of employment.

That means before, during, and on the way out the door–so it covers you during hiring, firing, and layoffs. (Though a recent court ruling challenges this. More on that in #5.) It also covers all aspects of employment: pay, job assignments, promotions, training, benefits, and any other term or condition of employment. In fact, an amendment to the ADEA called the Older Workers Benefit Protection Act (OWBPA) was passed in 1990 specifically prohibiting age discrimination in employee benefits.

4. But the ADEA doesn’t prohibit employers from asking your age or your graduation date on a job application or in an interview.

The reasoning is that companies need the information for other reasons such as background checks or age-requirements. AARP recommends removing this identifying information from your LinkedIn profile, or deflecting the question and pivoting the conversation in an interview back to how you are the best qualified for the job.

5. The ADEA is being weakened in the courts.

In 2009, the Supreme Court made it harder for older employees to win age bias suits. The Court stated that an employee must prove that age discrimination was the actual cause for the adverse employment action, not merely one factor. The ruling has made the burden of proof for age discrimination higher than for other types of discrimination.

More recently in January 2019, a U.S. appeals court dealt another blow to the ADEA. In the case of Kleber v Carefusion, they ruled in favor of the CareFusion in a case involving a Chicago lawyer applying for a position at the company. The ruling asserted that Congress intended the law to cover current employees, not outside job applicants. This despite the fact that the law explicitly states that it is “unlawful for an employer to discriminate against any of his employees or applicants for employment.”

Now What?

We have organized Respectful Exits to help end age discrimination in the workplace through collective action. Working together we can insist that employers adopt our Longevity Agenda and support employees to use ThePhazerTM to request extended work and flexible and phased retirement.

While Congress and the Courts debate, we can act and organize with the energy and skill our aging colleagues show in the video above. Join us!