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Age Discrimination
If
you're over 40, employers can't discriminate.
The Age Discrimination
in Employment Act of 1967 (ADEA) protects individuals who are 40 years
of age or older from employment discrimination based on age. The
ADEA's protections apply to both employees and job applicants. Under
the ADEA, it is unlawful to discriminate against a person because of
his/her age with respect to any term, condition, or privilege of
employment -- including, but not limited to, hiring, firing,
promotion, layoff, compensation, benefits, job assignments, and
training.
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.
The ADEA applies to
employers with 20 or more employees, including state and local
governments. It also applies to employment agencies and to labor
organizations, as well as to the federal government.
APPRENTICESHIP
PROGRAMS
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 makes it
unlawful to include age preferences, limitations, or specifications in
job notices or advertisements. As a narrow exception to that general
rule, a job notice or advertisement may specify an age limit in the
rare circumstances where age is shown to be a "bona fide
occupational qualification" (BFOQ) reasonably necessary to the
essence of the business.
PRE-EMPLOYMENT
INQUIRIES
The ADEA does not
specifically prohibit an employer from asking an applicant's age or
date of birth. However, because such inquiries may deter older workers
from applying for employment or may otherwise indicate possible intent
to discriminate based on age, requests for age information will be
closely scrutinized to make sure that the inquiry was made for a
lawful purpose, rather than for a purpose prohibited by the ADEA.
BENEFITS
The Older Workers
Benefit Protection Act of 1990 (OWBPA) amended the ADEA to
specifically prohibit employers from denying benefits to older
employees. An employer may reduce benefits based on age only if the
cost of providing the reduced benefits to older workers is the same as
the cost of providing benefits to younger workers.
WAIVERS OF ADEA
RIGHTS
At an employer's
request, an individual may agree to waive his/her rights or claims
under the ADEA. However, the ADEA, as amended by OWBPA, sets out
specific minimum standards that must be met in order for a waiver to
be considered knowing and voluntary and, therefore, valid. Among other
requirements, a valid ADEA waiver: (1) must be in writing and be
understandable; (2) must specifically refer to ADEA rights or claims;
(3) may not waive rights or claims that may arise in the future; (4)
must be in exchange for valuable consideration; (5) must advise the
individual in writing to consult an attorney before signing the
waiver; and (6) must provide the individual at least 21 days to
consider the agreement and at least 7 days to revoke the agreement
after signing it. In addition, 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.
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