Being Elderly Should Not Leave You Out Of a Job

As we mentioned yesterday, the number of workers who filed employment discrimination complaints last year with the Equal Employment Opportunity Commission was the most filed with the agency since the commission was created in 1964. The EEOC also won nearly $365 million for employees, also a record amount.

The EEOC lists 11 different types of discrimination prohibited by the laws enforced by the agency. It is important for workers alleging discrimination to understand the various types and to which workers the laws apply. Today, we will discuss age discrimination, which involves treating an applicant or employee less favorably because of their age. In the 2010 fiscal year for the EEOC, age discrimination led to $93.6 million in monetary benefits.

The Age Discrimination in Employment Act of 1967 (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, as it is not illegal for an employer to favor an older worker over a younger one, even if both workers are age 40 or older.

The ADEA applies to employers with 20 or more employees, and its protections include:

  • Apprenticeship Programs — The EEOC says 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 — It is generally unlawful to include age preferences, limitations, or specifications in job notices or advertisements, but an age limit can be specified in circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.
  • Pre-Employment Inquiries — While the ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth, the EEOC says “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. The EEOC notes that in limited circumstances, an employer may be allowed 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.
  • Waivers of ADEA Rights — While an employer may ask an employee to waive his or her rights or claims under the ADEA, the act as amended by OWBPA sets out specific minimum standards that must be met in order for a waiver to be considered knowing, voluntary and valid. A valid ADEA waiver must be in writing and understandable; specifically refer to ADEA rights or claims; not waive rights or claims that may arise in the future; be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled; advise the individual in writing to consult an attorney before signing the waiver; and provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

Have you or someone you know ever been discriminated against because of your age? What action did you take as a result of the discrimination?

In order to help others better understand how to prove discrimination, we will cover another form of discrimination tomorrow.

Law Offices of Kesluk, Silverstein & Jacob – Los Angeles employment attorneys



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