Employment Law Basics: ADEA and the Dangers of Age Discrimination

Employment laws can be confusing and downright scary.

They don’t have to be. As a public service, from now until my special Halloween webinar Answers to the World’s Scariest Employment Law Questions, I’ll be tackling each major law one by one to give you what you REALLY need to know. By the end, you’ll have handy one-page cheat sheets for each and every law and your terror level will be reduced to zero.

Today’s Topic: Age Discrimination.

As the workforce continues to get older and older, age discrimination is getting more and more prevalent. Last year alone, 23,264 age claims were filed with the EEOC. Here’s an article entitled Perfect Storm for Age Claims featuring an interview with yours truly that highlights the dangers in this area quite nicely.

Here is basically everything you need to know about the Age Discrimination in Employment Act (ADEA) in one handy post.


What employers are covered?

Those with 20 or more employees.

What’s prohibited?

What employees are covered?

Persons age 40 and older.

What is a “BFOQ”?

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A BFOQ is a bona fide occupational qualification. In general, an employer can’t prove that age is a BFOQ unless it can establish that all or almost all members over the selected age can’t safely perform the essential functions of the job. A BFOQ is difficult to prove unless the position at issue directly affects public safety.

What’s not prohibited?

An employer may take adverse action against an employee who is protected by the ADEA for non-discriminatory reasons unrelated to age.

How do you obtain a waiver of ADEA rights?

  • Obtain a written release executed by the employee that specifically refers to the ADEA.
  • Provide 21 days for the employee to consider the waiver and advise the employee to consult an attorney.
  • Provide 7 days for employee to revoke the waiver after signing.
  • In RIF (reduction in force)situations, provide 45 days for the employee to consider the waiver and an attachment to the waiver that contains the following:
    • the selection criteria for the RIF and any applicable time limits; and,
    • a list of job titles and ages of each person subject to the RIF and those employees who fall into the same organizational unit but were not subject to the RIF.

Top ADEA tips

  • Don’t ask for an applicant’s age at any point during the application process.
  • Prohibit all age-related comments from the workplace pursuant to an effective anti-harassment policy.
  • Base any employment actions on factors other than age (or other protected characteristics).
  • Apply performance standards, policies and procedures, and access to benefits uniformly without regard to age.
  • Document poor performance and disciplinary measures taken against employees.

Stay tuned for more. Tomorrow, we’ll de-scare-ify the Consolidated Omnibus Budget Reconciliation Act (COBRA).

This was originally published on Manpower Group’s Employment Blawg.

Mark Toth has served as Manpower Group North America's Chief Legal Officer since 2000. He also serves on the company’s Global Leadership Team, Global Legal Lead Team and North American Lead Team. Mark is recognized as an expert on legal issues affecting the U.S. workplace and is frequently quoted in media from The Wall Street Journal to 60 Minutes. He is also a past Chair of the American Staffing Association and is a certified Senior Professional in Human Resources. Contact him at mark.toth@manpowergroup.com.


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