The ADEA: A guide to U.S. age discrimination law

Of all the types of workplace discrimination, ageism — that is, discrimination based on a person's age — is probably the one talked about least. Despite this lack of attention, however, it's important to remember that the Age Discrimination in Employment Act (ADEA) expressly prohibits this type of discrimination in U.S. workplaces. In fact, the ADEA and its related regulations protect workers over age 40 in a number of areas of employment.

But that is just the beginning of what employers and employees should know about the ADEA — and this guide will fill in a few of the other important details.

The basics of the ADEA

The ADEA guides employers in ways to be inclusive of employees of all ages, while providing legal protections for older workers who may experience discrimination due to their age.

This legislation makes it outright illegal for an employer to fire or refuse to hire someone on the basis of their age. It also prohibits employers from many other decisions based solely on age, like giving or denying promotions. In fact, the ADEA regulations go as far as to say that it's unlawful for employers to discriminate against individuals "in any aspect of employment" because they are "40 years old or older."

ADEA: Employer defenses to age discrimination claims

As with pretty much every law, there are several exceptions to the rule that employers cannot discriminate based on age. And in the case of the ADEA, one of the main exceptions is when an individual's age is a "bona fide occupational qualification" (BFOQ) that is reasonably necessary to operating normally in their specific business.

While this may sound complex, it basically means that employers can sometimes implement an age limitation for a particular job, often done for safety reasons, such as mandatory retirement ages for pilots and bus drivers.

In order to prove a BFOQ, though, the employer would need to show a few things, including that the age limit they are imposing is reasonably necessary to the "essence of the business." They would also need to prove either of the following:

• All, or substantially all, of the individuals excluded from the job based on age are, in fact, unable to perform the job duties safely and efficiently
• Some of the individuals excluded from the job based on age possess a disqualifying trait that cannot be established except by reference to age

If an employer can successfully prove the BFOQ defense, then they may be permitted to make employment decisions based on age. Although, a word of warning for employers: This particular defense is very limited and courts must construe it narrowly — meaning it's an uphill battle.

Another common employer defense to an age discrimination lawsuit by an employer is to show that the employer has a "legitimate, non-discriminatory reason" for firing an employee — a reason not related to age. While this defense can vary from jurisdiction to jurisdiction, it is typically part of a much larger process where the burden of proving their cases shifts back and forth between and employer and employee.

The ADEA also prohibits age-driven harassment

While some people may think it's funny to crack a joke about someone's age, if done repeatedly in the workplace it may lead to an age-based, hostile work environment claim under the ADEA.

This type of age-related harassment can present itself in many ways, such as:

• Making fun of a person's age-based abilities
• Calling out a person's age as a limitation or hindrance to their job
• Questioning a person's skills, performance, or experience because of their age
• Laughing at or mocking someone because of their age
• Perpetuating age stereotypes in the workplace

While a single comment, joke, or action may not rise to the level of creating a hostile work environment, that can quickly change if employers continue to engage in this type of behavior over and over.

In many cases, it's an employer's duty to make sure this type of harassment doesn't occur, but if it does, an employee may use the ADEA to take action.

The ADEA is an important framework

While age discrimination can be difficult to prove, defending against such claims can be equally challenging. But with the ADEA to guide employers and detail recourse options for employees, there's hope for challenging these discriminatory practices and creating a more equitable workplace.

If you would like to learn more about the ADEA and how it’s enforced in U.S. workplaces — including the many details, nuances, and defenses not discussed here — you should give Practical Law a try. Sign up today for your free 7-day trial.