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What is Age Bias?

Age bias is a serious form of discrimination.  Many older workers are subjected to age bias when looking for a job and while employed.  However, federal law prohibits age bias in the workplace. 

Employees can allege intentional age discrimination, where employers singled out the employees for adverse treatment because of the employee’s age.

Employees can also bring unintentional age discrimination claims, where a neutral rule or policy actually results in older employees suffering more than younger employees. Policies or rules which often result in unintentional age discrimination claims include cutting benefits, dress codes designed to make employees look younger, and company downsizing.

Finally, employees can also allege age harassment in the form of hostile work environment claims.

What is the Age Discrimination in Employment Act (ADEA)?

The Age Discrimination in Employment Act (ADEA) was passed by Congress in 1967.  This law protects people who are 40 years of age or older from workplace discrimination based on age.  Under the ADEA, it is illegal to discriminate against older workers when hiring or firing employees.  Employers also must not discriminate when assigning benefits, job assignments, or training.

What is the Older Workers Benefit Protection Act?

The Older Workers Benefit Protection Act (OWBPA) was passed by Congress in 1990. The OWBPA makes it illegal for employers to use age when considering an employee's benefits or retirement. This law typically results in employers giving benefits to younger and older employees equally. Like the ADEA, the OWBPA is only applicable to employees age 40 or over.

What is the Equal Employment Opportunity Commission (EEOC)?   

The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).  In 2007, the EEOC received over 19,000 complaints concerning age bias.  After an initial investigation, the EEOC found enough evidence to proceed with roughly half of these claims, and resolved about 6,000 claims.  The EEOC recovered over $66 million through mediation and settlements in 2007.  This does not include money recovered through lawsuits filed by the EEOC or the employees.

Are There Any Defenses an Employer Can Use?

Employers can use these defenses against an age bias claim:

  • Not Protected Class – The ADEA only protects those age forty or older. An employee under forty cannot invoke the ADEA.
  • Not Qualified – The employee must be able to meet the employer’s legitimate job expectations regardless of age. If the employee cannot or can no longer meet the employer’s job qualifications, than the employee cannot expect to remain in a position which the employee cannot perform.
  • Not Replaced – An employee can only claim intentional age discrimination if the employee was replaced by someone at least five years of age or younger.
  • BFOQ – An employer can discriminate based on age if age is an essential part of the job reasonably necessary to the normal operations of the business. This defense is best utilized in cases of public safety, like firefighters, airline pilots and bus drivers. This defense has not been successfully applied to female dancers.
  • RFOA – RFOA stands for "reasonable factors other than age" discrimination. In other words, this defense stops liability if the employer can show that a factor other than age lead to a discriminatory affect. This defense is used against unintentional age discrimination claims only because intentional age discrimination age claims require that the employee prove that age discrimination was the motive behind the employer’s decision.

State Age Bias Laws

In addition to the ADEA, many states have passed their own age bias laws.  Some of these state laws offer more protections than the federal law. For example, federal law puts damage caps on discrimination cases, limiting the amount of money that an employee can collect from a discrimination case, even if the employee wins. Many states do not have such caps on their age bias laws.

Do I Need a Lawyer?

If you believe you are the victim of age bias, your first step should be to consult with an employment attorney to determine your best course of action. You can also send a complaint to the EEOC to determine if you can bring your claim to federal court.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-09-2013 10:37 AM PDT

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