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Age Discrimination

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Age Discrimination

  • Course: Employment Law 101
  • Module: Discrimination
  • Lesson Type: Video
  • Lesson Duration: 7:14

Lesson Content

Age discrimination is prohibited by an act called the Age Discrimination Employment Act. And it was originated in 1967 to protect employees that were over 40 years old. The idea is that you cannot discriminate based upon age and that could extent very broadly into the workplace, any terms or conditions or privileges and that like of the any other discrimination statutes deals with the applicants in the hiring process as well as people that are working for you or in training to work for your organization.

The interesting thing about the ADEA is that if you have two workers over 40, you can favor the older worker over the younger worker, who's over 40. But there are some interesting cases, trying to figure out to what extent does it protect the employees from age discrimination if they're being discriminated against by or in comparison to other employees over 40 and age discrimination itself is what it seeks to remedy.

40 is the threshold but an older worker over 40 can seek protection based upon something regarding a younger worker who is also over 40. And it clearly, along with many of the statutes that relate to discrimination, there is a provision that prohibits retaliation that's from either testifying or engaging in, or complaining about discrimination based upon age.

The ADEA doesn’t apply to everyone, but almost. It applies to businesses that have 20 or more employees, and then all of the governmental businesses or agencies as well have the applicability of the ADEA to its employment practices. Employment agencies and labor organizations are also included in the coverage. So unless you're a small employer with less than 20 employees in the private sector, chances are this law is applicable to your work place.

What does the ADEA protect? Well, a number of situations where you have apprenticeship programs or maybe you have advertisements. Advertisements are a particularly tricky area, especially when you have a economy that is, I guess, evolving out of the industrial age and into the information age and there's a lot of emphasis on computer skills and as a general proposition people are identifying more with cutting edge computer skills with the younger generation. So advertisements for different types of positions are an area of major concern. You wanna think about how you advertise for positions.

Inquiries, pre-employment inquiries, there's nothing prohibiting you from asking a date of birth. But you better have a good reason, and you better have it applicable to the important or essential aspects of the job, if it's just because you want to know, prior to making an employment decision, then what you're letting the world know is that that is something you're considering. So you need to think about when the timing for a certain information as well.

And also, I think it's important to know that the ADEA was amended by something called the OWBPA or the Older Workers Benefit Protection Act. And this is an act designed to help, protect people over 40 with regards of their benefits and their pensions. So you can wave your protections under this act, for instance, if you were going to have a separation agreement or severance package that you may want to have some assuredness as the employer, that the employee is not going to sue you based upon age discrimination after you've paid them all this money. So part of your requirement may be that they waive the ability to sue you. And so in that, there are some very specific things that are required. And I'll give you a couple of them, it has to be knowing and voluntary and in writing and understandable. It's important that any sort of waiver writes being clear and clean and precise language.

It has to specifically refer to The ADEA and the ADEA rights or claims. And it can only waive claims based upon the date that you signed going backwards. No future conduct, in other words. So, if you're letting an employee go and you wanted to give them a severance package in exchange for waiving these rights. The waiver or the separation package should clearly state that the employee is waiving claims that have arisen during the time of employment, up to the date that the agreement is being signed. And there has to be some valuable consideration usually for giving a severance package and you're giving money. This is an opportunity to obtain this waiver.

You also have to advice the employee to consult an attorney and you have to do what's called a review or revocation period. In other words, you have to provide the employee at least 21 days to consider the agreement and after they've even considered it and signed it they have seven days to revoke their signature.

So it's important for there to be a lot of care with regards to separations and waivers and specific rights and how that's done. More so with the AEDA than other statutory provisions that are dealing with discrimination because this particular act has a lot of very explicit requirements. I highly recommend you get council to assist you with doing this properly.

A waiver with regards to an exit incentive program could be much more extensive. For example the 21 day period for considerations extended to 45 days. There are some other issues as well, but the idea there is that knowing what's involved of properly waived rights, if you're seeking to do so with regards to an age discrimination claim is something you probably want to have counsel with to make sure it's done properly, otherwise you can totally invalidate your waiver, which is a big part of the reason employers engage in severance packages in the first place.

Mark Addington


Mark Addington

Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...

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