Age Discrimination in Employment Act (ADEA)
The ADEA makes it unlawful to discriminate against a worker based on his age. The law protects workers over 40 years of age. This protection covers hiring and other terms, privileges and conditions of employment unless a valid exception applies.
The ADEA does not prevent a potential employer from asking your age or date of birth as part of the interviewing or hiring process so long as it is not for discriminatory purposes. These inquiries are closely scrutinized, however, because of the potential to discourage older applicants.
- If age is a "bona fide occupational qualification" ("BFOQ") of the particular job and reasonably necessary to the operation of the business, then the ADEA is not violated.
- If the distinction is based on "reasonable factors other than age," then the ADEA is not violated. This is a case specific inquiry of the facts and circumstances surrounding the employee's or applicant's situation.
- Observance of the terms of a "bona fide seniority system" is not a violation so long as the system is not a veiled attempt to avoid the provisions of the ADEA. Additionally, the bona fide seniority system cannot force anyone to retire at a certain age. Forced retirement at a certain age is permissible, however, if there is a BFOQ, like safety.
- Bona fide executives or highly ranked policymaking employees, if they have worked at a high policymaking position for at least 2 years prior to the involuntary retirement, are 65 or over, and are entitled to immediate non-forfeitable annual benefits of at least $44,000 a year, are exempted from the ADEA protection from involuntary retirement.
- In some limited situations, the ADEA will not protect employees from the observance of the terms of a bona fide employee benefit plan.
- An individual may waive rights or claims based on the ADEA at the employer's request. This is usually done as party of a severance agreement or reduction in force.
- Valid waiver only occurs if the following conditions are met:
- The waiver is in writing and is understandable;
- ADEA rights or claims are specifically addressed;
- Claims or rights arising in the future may not be waived, only claims that have arisen prior to the signing of a waiver;
- The waiver must be in exchange for valuable consideration;
- Consultation with an attorney before signing the waiver must be recommended in writing; and
- The employer must provide at least a twenty-one (21) day period to consider the waiver before signing it and a seven (7) day period to revoke it after signing.
- If the waiver is signed in connection with employment termination or exit incentive programs, other, more extensive requirements apply.
Filing Requirements and Limitations:
- An ADEA claim must first be pre-filed with the EEOC within 180 days of the potentially unlawful action or within 300 days of the unlawful action if your state is a referral jurisdiction state. Tennessee is a referral jurisdiction state. The deadline will not be extended because of internal investigation of the incident within the company.
- A court action must be filed within 90 days of the receipt of a right-to-sue letter from the proper authority. A court action can also be filed 60 days after the charge has been filed with the EEOC.
- The ADEA only covers businesses with 20 or more employees. State laws may have different requirements.
Remedies and Damages:
- Back Pay
- This is the most common form of relief.
- Includes the value of wages, salary, and fringe benefits the claimant would have received during the period of discrimination from the date of termination/failure to promote to the date of trial. Upon a finding that the discrimination was willful, these damages may be doubled by the court.
- You have a duty to mitigate these damages by taking reasonable efforts to find comparable employment after you have been terminated.
- Attorney's Fees
- The court may choose to award attorney's fees to the prevailing, or winning, party.
- Front Pay
- Designed to compensate the victim for anticipated future losses due to the discrimination when the employer refuses to reinstate the employee or the court determines that reinstatement is not feasible. These damages cannot be doubled.
- Injunctive Relief
- Common examples of injunctive relief include reinstating a terminated employee and ordering the employer to prevent future discrimination.
- Liquidated Damages
- Under the ADEA, an employee may receive an additional amount equal to the amount of back pay. This amount is referred to as liquidated damages and is awarded only if the employee shows that the discrimination was "willful."