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Diversity, Inclusion and Equal Opportunity Office  
Age Discrimination - What Supervisors Need to Know

Excerpts taken from The U.S. Equal Employment Opportunity Commission "Training and Technical Assistance Program 2002" and online at http://www.eeoc.gov/facts/qanda.html


Q & A: Age Discrimination - What Practices Are Discriminatory?

The Age Discrimination in Employment Act of 1967 (ADEA), protects individuals who are 40 years of age or older.
It is illegal to discriminate in any aspect of employment, including:
  • hiring and firing;
  • compensation, assignment, or classification of employees;
  • transfer, promotion, layoff, or recall;
  • job advertisements;
  • recruitment;
  • testing;
  • use of company facilities;
  • training and apprenticeship programs;
  • fringe benefits;
  • pay, retirement plans, and disability leave; or
  • terms and conditions of employment.
The ADEA's broad ban against age discrimination also specifically prohibits:
  • statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
  • discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
  • denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Key Points to Remember

The Age Discrimination in Employment Act of 1967 (ADEA) 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, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Theories of Discrimination
  • Disparate Treatment - Intentional Discrimination

    Disparate treatment cases involve intentional discrimination, which may be proven through direct evidence, circumstantial evidence, or statistical evidence.

    Such cases under the ADEA are generally analyzed consistently with the analysis of disparate treatment cases under Title VII, with regard to, for example burden of proof, types of evidence, mixed motive cases, and after-acquired evidence.

  • Disparate Impact

    Claims that stress disparate impact involve employment practices that:
    • are facially neutral;
    • in fact fall more harshly upon one group than another; and
    • are not job-related and consistent with business necessity
Apprenticeship Programs

It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitation in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.

Job Notices and Advertisement

The ADEA makes it unlawful to include age preferences, limitations, or specification in job notices or advertisement. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOC) reasonably necessary to the essence of the business.

Pre-Employment Inquiries

The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

Benefits

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.