State and federal age discrimination laws operate differently. The federal Age Discrimination in Employment Act of 1967 (ADEA) applies only to employers with 20 or more employees. California's Fair Employment and Housing Act (FEHA) applies to all California employers with five or more employees. FEHA generally provides more protection to older workers. ADEA and FEHA apply to employers, the state and federal government, employment agencies and labor organizations.
Age discrimination against all workers age 40 and over is prohibited under under both California and federal law. Interestingly, ADEA only protected to workers age 40 to 65, and was later changed to protect workers 40 and over. American workers are getting older and the US government has confirmed that it does not want workers retiring by age 65. Social Security benefits now begin at age 67 and Congress is certain to raise the retirement benefits age even higher in coming years.
It is unlawful to discriminate against a person because of her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA or FEHA.
It is unlawful to harass a person because of his or her age. Harassment may include offensive remarks about a person's age. Although the law doesn't prohibit teasing, offhand comments, or isolated incidents that aren't serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision, for example, being fired or demoted.The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Age Discrimination Claims are Rising
Age discrimination claims have risen 330% over the past ten years (see Newsweek article). Laurie McCann, a senior attorney with AARP Foundation Litigation noted that during recessions, older workers bear the brunt of layoffs, force reductions and terminations and that AARP believes that age discrimination is grossly underreported. AARP believes that there is a lack of awareness about the law and that some older Americans suffering age discrimination believe that challenging the discrimination will be futile.
The US Supreme Court decided a case in 2009 that made it more difficult for older workers to win an age discrimination suit under federal law. Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009). The Court held that in an ADEA "disparate-treatment" claim, when an older worker proves that age was a factor in motivating an adverse employment action, the employee still must prove by a preponderance of the evidence that age was the "but-for" cause of the adverse action, that it was "the" factor - absent the age discrimination motivation, the employer would not have taken the adverse action. Gross resulted in a dramatic rise in the number of federal age discrimination claims that federal courts dismiss. AARP has lobbied Congress to introduce legislation changing the law to overcome the Supreme Court's interpretation in Gross.
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.
The ADEA does not prohibit an employer from asking an applicant’s age or date of birth on a job application. But older workers who were asked their age or birth date in an employment application may be able to claim an intent to discriminate based on age. Olender Pham partner Henry Pham brought suit in 2010 against an employer who required job applicants to complete a credit and background check form that asked for the applicant's date of birth. Before receiving the client's application, which indicated that she was 67 years old, the employer told her that she was a finalist and a top candidate for the job.
After learning the client's date of birth, the company not only did not her, but also cancelled an already-scheduled follow up interview with senior management. Although pre-employment age discrimination claims are difficult and the job was not a high paying one, Henry Pham was able to extract a mid-five figure settlement compensating the client for the wrong she suffered, not least the depressing waste of hours traveling to and from repeated interviews only to be dumped because she was old.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to prohibit employers from denying benefits to older employees. Because the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, requiring companies to provide the same benefits to older workers would create a disincentive to hire older workers. The ADEA allows employers under some circumstances 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. Federal law also permits employers 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 rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with a severance agreement or other employment termination program. But ADEA and OWBPA sets out the minimum standards an employer must meet for a waiver to be considered knowing and voluntary and thus valid. Among other things, 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.
If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.