Labor and Employment

Age Discrimination in the Workplace: What Are Your Rights?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Under federal law, older workers are protected from discrimination and entitled to the same benefits as younger workers.

The federal Age Discrimination in Employment Act (ADEA) protects employees who are at least 40 years old from age discrimination at work if their employers have at least 20 employees. The ADEA prohibits these employers from firing employees because of their age, forcing older employees into retirement, subjecting older workers to harassment based on age, and discriminating in benefits based on age.

Unlike other laws prohibiting discrimination, the ADEA doesn’t ban “reverse” discrimination. In other words, it protects only older workers from age discrimination, not younger workers. However, many states also have age discrimination laws. Some of these laws protect younger workers as well (for example, New Jersey prohibits discrimination against all workers between the ages of 18 and 70).

What Is Age Discrimination?

Under the ADEA, an employer may not take age into account when making job decisions. For example, an employer may not hire only younger workers, provide better compensation to younger workers, or target older workers for layoffs. Employers also may not make assumptions based on age—for example, that older workers won’t be up on the latest technological trends, won’t remain in the position for long because they plan to retire, or don’t need the same time off as younger workers who are just starting their families. (For more on discrimination in general, see Employment Discrimination FAQ for Employees.)

Discrimination in Hiring

Employers may not advertise only for younger workers, screen out workers whose resumes reveal that they are older, or use hiring criteria that correlate strongly with age, unless there’s a good business reason to do so. For example, it would likely be discriminatory for an employer to hire only recent college graduates because it would screen out a large number of older workers.

Of course, it isn’t difficult to guess an applicant’s age—if not from the dates of high school or college graduation, then from years of work experience, information gathered in a background check, and even the applicant’s general appearance. It’s not illegal for an employer to know an applicant’s age, but it is illegal for an employer to use that information in deciding whether or not to hire someone.

Workplace Harassment

In addition to prohibiting discrimination, the ADEA prohibits harassment of older workers. Harassment is unwelcome conduct that:

  • you have to put up with in order to keep your job, or
  • is severe or frequent enough to create a hostile work environment.

Harassment can take the form of teasing, jokes, or belittling comments about age, such as references to “senior moments,” calling older works names like “gramps” or “old-timer,” or suggestions that an older worker has dementia. Harassment can also take more sinister forms, such as threats and cruelty directed at older workers.

Courts have found that one or two age-related comments or jokes, even by a supervisor, don’t usually add up to harassment. However, frequent comments or more serious forms of harassment (like physical pranks or threats) are more likely to be illegal.

Discrimination in Benefits

Under the Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA, employers must offer older workers benefits that are equal to the benefits provided to younger workers—or, for some types of benefits, that cost the employer the same amount as benefits provided to younger workers. For benefits that do not cost more to provide to older workers, such as severance pay, paid time off, or a 401k matching program, employers must provide the same benefits to older and younger workers.

For benefits that cost more to provide as employees age (for example, health benefits or life insurance), an employer may be allowed to provide different benefits to older workers, if the employer spends the same amount on older and younger workers. To take advantage of this exception, however, an employer’s benefit plan must meet certain requirements. If you believe your employer’s benefit plan discriminates against older workers, you should talk to an employment lawyer.

Special Rules for Severance and Waivers

The OWBPA also requires employers to follow certain rules when it comes to waivers. A waiver is an agreement by which you give up your right to sue the company for age discrimination, usually in exchange for severance pay. If your employer asks you to sign a waiver of your ADEA rights, the waiver must be in writing and meet all of the following requirements (among others):

  • It must refer specifically to your rights under the ADEA.
  • It must be written in language that is easily understood.
  • It must give you some benefit in exchange for signing (for example, severance or continued health coverage).

Your employer must advise you, in writing, to talk to an attorney before signing the agreement. And, your employer must give you at least 21 days to decide whether to sign (this is extended to 45 days if the waiver is part of an exit incentive program, such as an early retirement plan). Your employer must also give you seven days to change your mind after signing.

If You Are Facing Discrimination

If you are facing workplace age discrimination or harassment, or if your employer has asked you to give up the right to sue the company for age discrimination, you should talk to an employment lawyer right away. A lawyer can assess the strengths and weaknesses of your claims and advise you on the best way to proceed. For example, if your employer has offered severance and asked you to sign a waiver, a lawyer might advise you to insist on a more generous package to compensate for the valuable legal claims you are giving up.

If you want to move forward with your legal claims, you will have to file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or your state’s fair employment practices agency. An attorney can help you file the charge, represent you before the agency in interviews and settlement negotiations, and, if necessary, file a lawsuit to vindicate your rights.

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