The Age Discrimination in Employment Act of 1967 (ADEA)
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 applications.  Under the ADEA, it is unlawful to discriminate against a person because of his or 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.

Job Notices
Job notices or advertisements 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 eth 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 employers’ request, an individual may agree to waive his or 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 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
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.