Age Discrimination in Employment Act: Employee Guide

An employee who experiences age discrimination in the workplace can hold their employer liable under the federal Age Discrimination in Employment Act, which protects workers 40 and older from certain adverse employment decisions based on age. California employees have additional protections under state law that expand on what the ADEA provides.

Age Discrimination in Employment

An employer commits age discrimination when it makes an adverse employment decision against a worker because of age. Adverse employment decisions can occur at any stage of employment, and the Age Discrimination in Employment Act covers a broad range of employment actions.

Employers cannot:

• Include age preferences in job postings or refuse to consider applicants 40 and older, unless age is a bona fide occupational qualification for the position
• Ask an applicant’s age or date of birth for a discriminatory purpose. Although the ADEA does not categorically prohibit age inquiries, the EEOC warns that they may discourage older applicants or provide evidence of age discrimination
• Pay workers 40 and older less than younger workers performing the same job because of age
• Deny a promotion or evaluate a worker unequally compared to younger colleagues because of age
• Exclude older workers from training programs or high-visibility job assignments because of age
• Select a worker for layoff or termination because of age, even when the employer also has legitimate financial or operational reasons for reducing its workforce

A worker who is passed over for a promotion in favor of a significantly younger colleague, or terminated and replaced by a younger employee, may have a case against their employer under the Age Discrimination in Employment Act.

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act prohibits employers from taking adverse action against workers and job applicants who are 40 and older because of their age. A worker or applicant under 40 has no protection under the Act, even if an employer treated them less favorably because they were considered too old to perform the duties of the position. Likewise, a worker or applicant under 40 has no protection under the Act if an employer treated them less favorably because they were considered too young.

The Age Discrimination in Employment Act does not apply to every employer. The Act covers:

• Private employers with 20 or more employees
• State and local governments
• Employment agencies
• Labor organizations

ADEA Filing Deadlines

An employee or applicant who experiences age discrimination has 300 days from the date of the discriminatory act to file a charge with the EEOC. The EEOC then investigates the charge, and once 60 days have passed since the charge was filed, an employee can file a lawsuit in federal court whether or not the investigation is complete. An employee who waits for the EEOC to conclude its investigation has 90 days after receiving notice that the EEOC has dismissed the charge or otherwise terminated its proceedings to file suit.

ADEA Retaliation Protections

The Age Discrimination in Employment Act prohibits employers from retaliating against a worker for opposing age discrimination in the workplace, filing a charge with the EEOC, testifying in an age discrimination proceeding, or participating in any EEOC investigation or litigation brought under the Act. A worker who experiences retaliation can pursue a case against the employer on that basis independently of the underlying age discrimination case.

California's Fair Employment and Housing Act

California employees covered by the Age Discrimination in Employment Act also have rights under California's Fair Employment and Housing Act, a state law that prohibits age discrimination while applying those protections to a broader set of employers and gives employees more time to file a complaint and pursue a lawsuit than the ADEA allows. FEHA's discrimination protections apply to private employers with five or more employees, state and local governments, employment agencies, and labor organizations. Harassment protections under FEHA apply to all employers in California regardless of size.

FEHA also goes further than the ADEA in five ways:

1. FEHA protects workers who an employer mistakenly perceives to be 40 or older and discriminates against on that basis, even if the worker is actually younger than 40.
2. California employees have three years to file an age discrimination complaint with the California Civil Rights Department, compared to 300 days under the ADEA.
3. California employees have one year after receiving a Right-to-Sue notice from the CRD to file a lawsuit, compared to the ADEA, which allows an employee to file a lawsuit 60 days after filing a charge with the EEOC without requiring a Right-to-Sue notice.
4. A worker bringing a FEHA case only needs to show that age was a substantial motivating factor in the employer's decision, while the ADEA requires proof that age was the but-for cause.
5. A worker who prevails on a FEHA case can recover emotional distress damages and may also recover punitive damages when the employer's conduct meets California's requirements. The ADEA does not allow either form of damages.

California workers covered under both laws can pursue a case under the ADEA, state law, or both. An employment attorney can advise on which path, or combination of paths, makes sense based on the specific facts of a case.

California FEHA Deadlines and the CRD Right-to-Sue Notice

California employees generally have three years from the date of the discriminatory act to file a complaint with the California Civil Rights Department. The CRD independently investigates the facts and gathers evidence to determine whether there is reasonable cause to believe the employer violated the law. If the CRD finds reasonable cause, it attempts to resolve the complaint through settlement or mandatory dispute resolution. If those efforts are unsuccessful, the CRD's Legal Division may file a lawsuit against the employer in the Department's name. The CRD represents the state rather than the employee, but the employee receives 100% of any remedies recovered, excluding attorney fees and costs.

An employee who prefers to bypass the CRD investigation can request an immediate Right-to-Sue notice and pursue a lawsuit directly in state court. The employee has to still file a complaint with the CRD to obtain the notice and generally has one year from the date of the notice to file the lawsuit.

Direct and Coded Age Discrimination

Direct age discrimination refers to explicit statements or actions by an employer that reveal an employee or applicant's age as the basis for an adverse employment decision. A manager who tells a worker the company needs ‘someone younger’ directly identifies age as a reason for the decision. A job posting limited to ‘recent graduates’ may also provide evidence of age bias because the restriction can disproportionately exclude older applicants.

Age discrimination also takes more subtle forms, and specific words and phrases can signal age bias even when age is never mentioned directly. For example, an employer who screens out a candidate as "overqualified" may be treating years of experience as a disqualifying attribute, and an employer who requires candidates to be "digital natives" or describes an open role as needing a "high energy" candidate may be filtering out older applicants based on age-based assumptions. Similarly, a performance review that describes a longtime employee as "inflexible" or "set in their ways" without citing specific conduct may also support an inference of age bias when considered with other evidence. Age-coded language is evaluated alongside the surrounding evidence.

Evidence That Supports an Age Discrimination Case

The success of an age discrimination case depends on the available evidence, and records created when the conduct occurred tend to be more persuasive than memories reconstructed later. Employees and applicants who believe they may have been a victim of age discrimination should:

1. Start a written log of every age-related comment or act of exclusion as it occurs, and record the date and who made the remark.
2. Preserve emails and other written communications containing age-related comments or age-coded language.
3. Collect prior performance reviews and commendations from before the adverse treatment began, since a sudden change to negative evaluations after years of strong performance can indicate that age became a factor in the employer's assessment.
4. Document which colleagues were affected and which were not by the same employment decision, and note their approximate ages.
5. If a manager raises the subject of retirement verbally, follow up by email to create a written record of the exchange.

Severance Agreements and ADEA Waivers

An employee who is laid off and offered a severance package may be asked to waive the right to file an age discrimination case against the employer. The Older Workers Benefit Protection Act, a 1990 amendment to the Age Discrimination in Employment Act, sets specific requirements that a severance agreement has to meet for an ADEA waiver to be enforceable:

1. The waiver has to specifically mention the Age Discrimination in Employment Act by name.
2. The employer has to offer additional compensation beyond what the employee is already owed in exchange for the waiver.
3. For an individual layoff, the employee has 21 days to review the agreement and 7 days to revoke after signing.
4. When an employer asks a group of employees to waive ADEA claims as part of a layoff or other termination program, employees have 45 days to review the agreement. The employer also has to provide information about who was considered for the program and disclose the ages and job titles of the employees selected and not selected.
5. The employer has to advise the employee in writing to consult an attorney before signing.

A waiver that does not meet every one of the requirements is unenforceable, and the employee retains the right to file a case under the ADEA.

California's Additional Severance Protections

California's SB 331, known as the Silenced No More Act, prohibits employers from including confidentiality or non-disparagement clauses that stop an employee from discussing age discrimination or other workplace misconduct in severance agreements. Under the Act, California employees also have at least five business days to consult an attorney before signing a severance agreement that waives state civil rights claims, though an employee may sign before that period expires if the decision is knowing and voluntary and not induced by the employer.

Contact Jeremy Pasternak

Jeremy Pasternak represents California employees and job applicants in age discrimination cases under the Age Discrimination in Employment Act and California's Fair Employment and Housing Act. Employees and applicants with questions about a potential age discrimination case can contact our office.