The Age Discrimination in Employment Act (ADEA) of 1967 provides a federal statutory remedy for older Americans who experience agebased discrimination in the workplace. According to this law,
It shall be unlawful for an employer—
- to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
- to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
- to reduce the wage rate of any employee in order to comply with this chapter. (29 U.S.C. 623(a))
The Age Discrimination in Employment Act protects employees and prospective employees or applicants aged 40 and above from a wide range of discriminatory actions based on age: hiring, dismissal, promotion, demotion, and transfer; conditions of employment, including compensation and early retirement incentive programs; and retaliation for exercising Age Discrimination in Employment Act rights. However, if two or more applicants are 40 years of age or older, the ADEA does not afford protection to the disappointed applicant where the job went to a member of the class that the statute was designed to protect. Plaintiffs must file suit within 90 days of receiving right-to-sue letters from the Equal Employment Opportunity Commission (EEOC).
There are two types of Age Discrimination in Employment Act claims. First, employees can file disparate treatment charges, in which they accuse their employers of taking negative or less favorable action against them on account of their ages. For example, when a former dean claimed that university officials demoted him because of his age, the institution established that he was demoted not due to age but rather to deficiencies in his performance as dean, thereby establishing that it relied on a bona fide occupational qualification in rebutting his claim.
The other type, disparate impact claims, involve facially neutral employer policies or practices that impact disproportionately and substantively an ADEA-protected group. In breaking with another circuit, the Seventh Circuit found no Age Discrimination in Employment Act violation in a school policy that hired less experienced, and therefore generally younger, applicants because they are more affordable. Another two appellate courts upheld university policies that paid professors based on market value, even if this resulted in younger faculty being paid more than older colleagues. Courts have divided over early retirement incentive plans that offer benefits only to those educators who accept the option by a certain age.