Age Discrimination in Employment Act (ADEA)

Who the ADEA covers

The ADEA protects people who are 40 or older. There is no upper age limit. It does not protect workers under 40, and the Supreme Court held in General Dynamics Land Systems v. Cline (2004) that it does not stop an employer from favoring an older worker over a younger one, even if both are over 40.

It applies to private employers with 20 or more employees for 20 or more calendar weeks in the current or previous year, to state and local governments, to employment agencies and to labor organizations. The federal government is covered under a separate provision. Many state laws go further: some cover employers with only a handful of employees, and some protect workers of any adult age, so a 30-year-old may have an age claim under state law even though the ADEA doesn't apply.

Age is a protected class under federal law alongside race, sex, religion, national origin, disability and genetic information, and the EEOC enforces the ADEA.

What the ADEA prohibits in hiring

The law reaches every stage of recruiting. Practices that commonly cause trouble:

• Job ads with age preferences. The ADEA specifically prohibits notices or ads indicating a preference based on age. Phrases like "recent graduate," "digital native" or "young, energetic team" are risky. A job posting can describe the work and the skills; it shouldn't describe the age of the person.
• Experience caps. "3 to 5 years of experience, no more than 7" screens out older workers. If you need a level, describe the scope of responsibility instead.
• Graduation dates. Requiring them on an application, or filtering resumes on them, is an easy proxy for age.
• "Overqualified" rejections applied mainly to older candidates without a job-related reason.
• Targeted ads. Showing job ads only to younger audiences on social platforms has been the subject of EEOC charges and lawsuits.
• Interview questions about retirement plans, how long someone plans to work, or how they feel about a younger manager.

For high-volume employers, automated filters deserve a look. A resume screener that penalizes long careers, or a knockout question that counts years since graduation, can produce age bias at scale.

How ADEA claims work

Two features set ADEA claims apart from Title VII claims. First, the plaintiff must show that age was the but-for cause of the decision, not just one motivating factor, under Gross v. FBL Financial Services (2009). Second, disparate impact claims are allowed under Smith v. City of Jackson (2005), but the employer's defense is that the practice was based on a reasonable factor other than age, which is easier to meet than Title VII's business necessity standard.

Charges generally must be filed with the EEOC within 180 days, extended to 300 days in states with their own fair employment agency. Remedies can include back pay, reinstatement or front pay, and for willful violations an equal amount as liquidated damages.

OWBPA and severance waivers

The Older Workers Benefit Protection Act of 1990 amended the ADEA and sets requirements for any release of age-discrimination claims, which matters every time you offer severance to someone 40 or older. A valid waiver must be knowing and voluntary, which includes:

• Written in plain language and specifically referring to rights under the ADEA
• Advising the employee in writing to consult an attorney
• Giving at least 21 days to consider the agreement
• Allowing 7 days after signing to revoke
• Offering something of value beyond what the employee is already owed
• Not waiving claims that arise after signing

In a group exit program, such as a reduction in force, the consideration period rises to 45 days, and the employer must give written information on the decisional unit, eligibility factors, time limits, and the job titles and ages of everyone selected and not selected. Getting this wrong can make the release unenforceable against age claims while the employee keeps the severance pay.

Layoffs and age

Reductions in force are where many ADEA claims start. Before finalizing a list, run the numbers: compare the share of employees 40 and over selected for layoff with their share of the decisional unit, and look at sub-bands such as 50 and over and 60 and over. Selection criteria based on salary or "future potential" can correlate with age, so document the business reasons and check outcomes before notifying anyone. Combine this with WARN Act notice obligations where the layoff is large enough.

Common mistakes

• Age-coded language in ads and interview notes ("needs high energy," "fresh perspective").
• Forgetting OWBPA timelines in severance agreements, especially the 45-day period and disclosure list for group programs.
• Assuming younger hires are cheaper and therefore justified. Cost alone is risky reasoning if it lands mainly on older workers.
• Mandatory retirement policies. These are generally prohibited, with narrow exceptions such as certain high-level executives with substantial pensions and some public safety roles.

This is general information about US federal law. State age discrimination laws often cover smaller employers and broader age ranges, so check local rules.