Avoiding Age Discrimination

State and federal laws protect older workers from discrimination on the basis of their age.

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A number of state and federal laws prohibit employers from discriminating against employees and applicants on the basis of age.

The Age Discrimination in Employment Act

The federal Age Discrimination in Employment Act (ADEA) is the major federal law that prohibits employers from discriminating against employees and applicants who are at least 40 years old on the basis of their age. Those who are under the age of 40 are not protected by the ADEA; under federal law, an employee cannot make a claim of age discrimination until reaching the age of 40.

The ADEA prohibits discrimination in all phases of the employment relationship, except benefits and early retirement, which are addressed by a different law (see below). The aspects of the employment relationship that the ADEA governs include help wanted ads, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments, and termination.

The ADEA applies to all private employers that have at least 20 employees. It applies to government employees as well, although state employees are prohibited from filing age discrimination lawsuits.

Not only does the ADEA prohibit you from discriminating against older workers in favor of those who are younger than 40, but it also prohibits you from discriminating among older workers. For example, you can't hire a 43-year-old over a 53-year-old simply because of age.

State Laws

Many state laws also prohibit discrimination on the basis of age. Although some of these laws essentially mirror the federal law and only protect people older than 40, other laws are broader and protect workers of all ages.

State laws tend to include employers with fewer than 20 employees, so you might have to comply with your state law even if you aren't covered by the federal law.

To find out more about the age discrimination law in your state, contact your state fair employment office.

Discrimination in Benefits and Early Retirement

The federal Older Workers Benefit Protection Act (29 U.S.C. §§ 623 and following) makes it illegal for you to use an employee's age as a basis for discrimination in benefits and retirement. Like the ADEA, this act protects only people who are at least 40 years old.

Under this law, you cannot reduce health or life insurance benefits for older employees, nor can you stop their pensions from accruing if they work past their normal retirement age. The act also discourages businesses from targeting older workers when cutting staff.

In addition, the act prohibits employers from forcing employees to take early retirement. An early retirement plan is legal only if it gives the employee a choice between two options: keeping things as they are or choosing to retire under a plan that makes the employee better off than he or she was previously. This choice must be a genuine one; the employee must be free to reject the offer.

To learn more about the ADEA and the Older Workers Benefit Protection Act, log onto the website of the federal Equal Employment Opportunity Commission, at www.eeoc.gov.

For More Information

For a comprehensive reference to the important laws that every employer and HR pro needs to know, get The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).

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