Age Discrimination at Work: How the ADEA Protects Employees 40 and Older

Federal law protects workers age 40 and older from discrimination because of age. Age bias can show up in hiring, promotions, layoffs and retirement pressure, and it is often subtle.

Who is protected

• Employees and job applicants age 40 and older.
• The federal law covers employers with 20 or more employees, and state laws often cover smaller ones.
• It covers private employers, labor unions, employment agencies and government employers, with some differences.
• Younger workers may be protected by state laws.
• It is generally illegal to favor younger workers over older ones because of age, even if the younger worker is also over 40.

What the law prohibits

• Refusing to hire, promote or train someone because of age.
• Firing or laying off someone because of age.
• Harassment based on age.
• Job ads that discourage older applicants, such as "recent graduate" or "digital native."
• Forced retirement in most jobs.
• Retaliation for complaining about age discrimination.

Signs of age discrimination

• Comments about retirement, energy or being "set in your ways."
• Replacement by a younger worker with less experience.
• Layoff selection patterns that disproportionately affect older workers.
• Sudden negative reviews after years of good ones.
• Exclusion from training or assignments.
• Pressure to take early retirement or severance.

Steps to take

1. Document the facts: dates, comments, who was involved and comparators.
2. Save reviews, emails and layoff communications.
3. Report concerns through internal channels and keep copies.
4. File a charge with the EEOC or your state agency within the deadline, generally 180 or 300 days.
5. Review any severance carefully, since waivers of age claims must meet legal requirements.
6. Talk to an employment lawyer.

Special rules for waivers

If an employer offers severance in exchange for waiving age claims, federal law requires specific disclosures, a time period to consider the offer, often 21 days, or 45 days in group programs, and a revocation period after signing. See our guide on severance agreements.

Employer defenses

• Reasonable factors other than age, such as performance or business needs.
• Bona fide occupational qualification in narrow cases.
• Seniority systems and some benefit plans.
• Good cause for discipline or discharge.

How age bias can look in modern workplaces

Age discrimination is often subtle. Comments about "fresh ideas" or "culture fit," targeting of higher-paid older workers in layoffs and exclusion from technology training can all be evidence. Statistics about who is laid off and who is hired can matter in group cases. Documenting patterns helps.

Layoffs, severance and waivers

In group layoffs, older workers are often asked to sign waivers of age claims in exchange for severance. Federal law requires employers to provide information about the ages and job titles of employees selected and not selected. Reviewing this information can reveal patterns. Use the full review period and consider legal advice.

Real-life scenarios

1. A 58-year-old is laid off while younger employees with similar roles are kept.
2. A job ad seeks "digital natives," discouraging older applicants.
3. An employee receives a severance offer with a 45-day review period and a list of ages of those selected.

Common mistakes to avoid

• Waiting too long to file a charge.
• Signing a waiver without reviewing disclosures.
• Not saving ads and emails.
• Ignoring comments about age.
• Assuming ageist remarks must be explicit.
• Not comparing treatment of younger coworkers.

Questions to ask a professional

• Is my employer covered by the federal law?
• Does the waiver meet legal requirements?
• What deadlines apply?
• How can I show age was a factor?
• What damages are available?

A practical action plan

1. Save documents and note comments.
2. Compare treatment of younger coworkers.
3. Review severance offers and disclosures.
4. File an agency charge within the deadline.
5. Talk to an employment lawyer.

Terms you may hear

• ADEA: the Age Discrimination in Employment Act.
• Disparate treatment: intentional unequal treatment.
• Disparate impact: neutral policy affecting older workers more.
• OWBPA: the law governing age waivers.
• Reduction in force: a layoff.

Practical considerations

Proving age discrimination often depends on patterns and comparisons. Documenting who was hired, promoted or laid off, and their ages and qualifications, can show whether age played a role. Evidence of comments, performance reviews that changed suddenly and shifting explanations from the employer can also help. Keep notes with dates and names.

Special situations and exceptions

Employers sometimes offer early retirement or voluntary separation packages. These can be legitimate, but pressure to accept them may be evidence of discrimination. Before signing any waiver, read the disclosure documents, use the full review period and consider legal advice, since waivers of age claims are strictly regulated by federal law.

Frequently asked questions