Tag Archives: adea

Age Discrimination

The Age Discrimination in Employment Act or ADEA, is defined a that which prohibits any employer from refusing to hire, discharge or otherwise discriminate against any individual because of age. Within the act specifically prohibits age-based discrimination against employees who are at least 40 years of age and covers compensation, terms, conditions and other privileges of employment including health care benefits.

The ADEA law started in 1964 along side the Civil Rights Act. This law prohibited those who were discriminating in employment based on color, sex, national origin or religion. The statute helped women and minorities begin to gather some footing in the job industry. The original act omitted Title VII which focused on age discrimination. After three more years, the U.S. Senate and the House of Representatives passed the act focusing on age.

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

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 limitations 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 Advertisements – The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation 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. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.

Waivers of ADEA Rights – An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:: be in writing and be understandable; specifically refer to ADEA rights or claims, not waive rights or claims that may arise in the future; be in exchange for valuable consideration; advise the individual in writing to consult an attorney before signing the waiver; and provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it

Some positions certainly have requirements that one of a certain age could not meet, for this reason, the ADEA does allow employers to provide for a bona fide occupational qualification defense. An employer seeking to use this defense must show that its age classification is reasonably necessary to the safe and proper performance of the job in question. The employer must also show either:1) that it is reasonable to believe that all or most employees of a certain age cannot perform the job safely, or 2) that it is impossible or highly impractical to test employees’ abilities to handle all tasks associated with the job on an individualized basis.

ADEA also allows employers to discharge or otherwise discipline an employee for good cause, and to use reasonable factors other than age in their employment decisions.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com