Age Discrimination in Employment Act (ADEA)

Who the ADEA protects and who must comply

Coverage under the ADEA has two dimensions:

Summarise this post with:

• Protected individuals. Applicants and employees age 40 and older. The ADEA does not protect workers under 40, although some state laws extend protection to younger workers (notably New Jersey, which protects workers age 18+).
• Covered employers. Private employers with 20 or more employees in 20 or more calendar weeks in the current or preceding year. State and local government employers regardless of size. Employment agencies of any size that serve covered employers.

Notably, the ADEA permits employers to favor older workers over younger workers, even when both are over 40 (*General Dynamics Land Systems v. Cline*, 2004). “Reverse age discrimination” claims by workers over 40 alleging discrimination in favor of older workers are not actionable under the ADEA.

What the ADEA prohibits

Section 4 of the ADEA (29 USC 623) makes it unlawful for an employer to discriminate against any individual age 40 or older with respect to any term, condition, or privilege of employment:

• Hiring. Refusing to hire on the basis of age. Job advertisements with age preferences (“recent graduates,” “digital native,” “young dynamic team”) are presumptively unlawful.
• Termination and layoff. Discharging individuals because of age. Reductions in force that disproportionately affect older workers may trigger disparate-impact scrutiny.
• Compensation. Paying older workers less for substantially equal work.
• Job assignments and promotions. Channeling older workers into less desirable roles or denying promotion opportunities based on age.
• Training and development. Excluding older workers from training programs, leadership development, or career-growth opportunities.
• Harassment. Permitting age-based harassment that creates a hostile work environment.
• Retaliation. Adverse action against an employee who has opposed age discrimination, filed a charge, or participated in an EEOC investigation.

The Older Workers Benefit Protection Act (OWBPA)

The Older Workers Benefit Protection Act of 1990 established highly prescriptive requirements governing most severance and reduction-in-force programs:

• ADEA waiver requirements (individual). A waiver of ADEA rights in a severance agreement is enforceable only if it is knowing and voluntary. The OWBPA requires the waiver be written in plain language, specifically reference the ADEA, advise the employee to consult an attorney, provide at least 21 days to consider, and 7 days to revoke after signing.
• ADEA waiver requirements (group). For waivers connected to a group termination program (a layoff or RIF affecting two or more employees), the requirements are stricter: at least 45 days to consider, disclosure of the job titles and ages of all employees eligible and not selected for the program, and the standard 7-day revocation right.
• Severance value. The consideration for an ADEA waiver must exceed anything the employee would already be entitled to.

Failure to follow OWBPA waiver requirements invalidates the waiver. The employee can both keep the severance paid and bring an ADEA claim. OWBPA violations are one of the most preventable yet most expensive errors in reduction-in-force execution.

The ADEA in hiring: what employers can and cannot do

• Permissible: Asking whether the applicant meets a minimum age requirement legitimately tied to the role (“Are you at least 21?” for an alcohol-serving role).
• Prohibited proxies: Asking high school graduation date, college graduation date, or “when did you start working?” Each is a date-of-birth proxy and a frequent source of ADEA exposure.
• Prohibited in job advertisements: “Recent graduates,” “young energetic team,” “digital native,” “early-career professional,” and similar phrases are presumptively unlawful under EEOC guidance.
• Prohibited interview questions: Anything that elicits age information indirectly (“When did you graduate?”, “How long have you been in the workforce?”).

Proving an ADEA claim: the burden structure

Under *Gross v. FBL Financial Services* (2009), an ADEA plaintiff must prove that age was the “but-for” cause of the adverse employment action – a higher burden than the “motivating factor” standard under Title VII. The standard burden-shifting framework:

• Prima facie case. Age 40 or older, qualified for the position, suffered an adverse employment action, and circumstances giving rise to an inference of age discrimination.
• Legitimate non-discriminatory reason. The employer must articulate a legitimate non-discriminatory reason for the adverse action.
• Pretext. The plaintiff must then prove that the employer’s stated reason is pretextual and that age was the but-for cause. Comparator evidence, statistical patterns, and direct statements of age bias are all relevant.

Reduction in force and ADEA risk

RIFs are the largest source of ADEA litigation and settlement exposure. A defensible RIF process:

• Document the business rationale. The RIF needs a documented business case that is contemporaneous with the decision, not constructed after the fact.
• Define selection criteria objectively. Skills, performance ratings, function alignment. Subjective criteria (“flexibility,” “adaptability,” “fit with new direction”) attract scrutiny when they correlate with age.
• Run a disparate-impact analysis. Before finalizing the selection list, analyze the proposed selections by age. If older workers are disproportionately selected, the criteria need re-examination.
• Follow OWBPA group waiver requirements. 45-day consideration period, disclosure of titles and ages of selected and non-selected employees, 7-day revocation, severance exceeding standard entitlement.

Pair RIF execution with validated skills assessment to anchor retention decisions in demonstrated capability rather than proxies that may correlate with age. See also anti-discrimination, ageism, after-acquired evidence, and application form for related compliance frameworks.

Frequently asked questions

Frequently asked questions