Protecting Older Employees from Age Discrimination

The economic downturn has hit a lot of older employees hard – aside from getting laid off even after years of faithful service to their companies, they are finding it even more difficult to find new employment. Unlike fresh graduates or younger employees who tend to agree to be paid less and want less security and benefits, most older workers want to be compensated properly and cost-cutting employers prefer not to hire them or give them the benefits they deserve.

This kind of unfavorable treatment is employment discrimination and under the Age Discrimination in Employment Act of 1967 (ADEA), is considered unlawful.

Under ADEA, employees and job applicants who are 40 years old or older are protected from age-related employment discrimination. This law prohibits discrimination based on a person’s age in any term, condition, or privilege of employment such as hiring, promotion, lay-off, or firing.

All employers with 20 or more employees, state and local governments, the federal government, and even employment agencies and labor organizations are covered by this law. Further, ADEA protects you against age discrimination in the following:

• Job Advertisements and Notices - It is unlawful to include age preferences, limitations, or specifications in job advertisements or notices. An age limit may be specified only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) that is reasonably necessary to the normal operation of the business.


• Benefits – An amendment to ADEA, the Older Workers Benefit Protection Act of 1990 (OWBPA) specifically prohibits employers from denying benefits to older employees. However, 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 no less than the cost of providing benefits to younger workers.


• Apprenticeship Programs – Unless within certain specific exceptions under the ADEA or if the Equal Employment Opportunity Commission itself grants a specific exemption, it is unlawful to impose age limitations in apprenticeship programs as well as joint labor-management apprenticeship programs.

Also, under ADEA, it is illegal to retaliate against an employee or applicant for filing an age discrimination charge, or participating in any investigation or litigation under ADEA.

Take note however, that an employer may ask an older employee to waive his rights or claims under ADEA in a severance agreement. These commonly occur in connection with exit incentive or termination programs. But not all waivers are valid or lawful, so a discrimination attorney in Los Angeles can help you in any age-discrimination issues at work.