Age Discrimination in Employment Act of 1967 (ADEA) (part of the Fair Labor Standards Act of 1938) 29 U.S.C. § 621 et seq.; 29 C.F.R. Part 1625.1 et seq.

Prohibits employment discrimination based on age with respect to persons who are at least 40 years of age.  As of January 1, 1994, mandatory retirement for faculty, whether tenured or not, is unlawful. Exemption for high level managers in bona fide executive or high policy making positions.  The ADEA was amended by Pub. L. No. 104-208, § 119, 110 Stat. 3009 (1996).  The amendment restores the public safety exemption, thus allowing police and fire departments to use maximum hiring and mandatory retirement ages. See 29 U.S.C. § 623(j)(1). Does not per se prohibit the asking of age or date of birth on a job application, but indicates that such action will be closely scrutinized for legitimate business purpose.

Section 941 of the Higher Education Amendments of 1998 amends the ADEA by allowing institutions of higher education to offer tenured faculty voluntary early retirement incentive plans that are in part age-based.  Safe harbor provisions require that the supplemental age-based benefits must be in addition to retirement or severance benefits offered generally to tenured faculty, independent of an early retirement plan offered in the preceding 365 days.  An 180-day election period is required. The effective date is October 1, 1998, and does not affect a cause of action that arose prior to that date.

Recordkeeping:  See 29 C.F.R. § 1627.3.

For three years:

For one year:

• Job applications, résumés and any other form of employment inquiry submitted in connection with job openings, as well as records pertaining to the failure to hire an individual.

• Promotion, demotion, transfer, training selection, layoff, recall or discharge records.

• Job orders submitted to an employment agency or labor organization for recruitment of personnel.

• Test papers completed by applicants which disclose the results of employment tests.

• The results of physical exams considered by the employer in connection with any personnel action.

• Any ads or notices to the public or employees relating to job openings, promotions, training programs, or opportunities for overtime work.

For the term of the plan, and at least one year after termination of the plan:

Posting:  See 29 C.F.R. § 1627.10.  A summary of the law’s provisions must be posted in prominent and accessible places where it can be observed by employees, applicants and union members.  The required notice is available from the EEOC.

Definition of Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act
75 Fed. Reg. 7212 (Feb. 18, 2010)

This proposed rule defines reasonable factors other than age. A summary of these factors is online along with a checkist for employers at CCH Work Day.  The proposed  standard is lower than Title VII's business-necessity test but higher than the Equal Pay Act's "any other factor'' test. It represents a balanced approach that preserves an employer's right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities.

Clarification With Lilly Ledbetter Fair Pay Act of 2009
On January 29, 2009, President Obama signed this new law which is retroactive to May 28, 2007. The new law rejects the holding in Ledbetter v. Goodyear Tire and Rubber Co. In that case The Supreme Court held that the charge filing deadline on discriminatory pay begins to run with the initial pay decision, and squarely rejected the theory that each new paycheck amounted to an act of continuing discrimination. The Ledbetter law amends Title VII, the ADA, the Rehab Act and The Age Discrimination in Employment Act of 1967 to provide that the charge-filing periods  would commence when: (1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to the decision or practice; or (3) an individual is affected by an application of a discriminatory compensation decision or practice (including each time wages, benefits, or other compensation is paid). See the Jackson Lewis Newsletter posted January 29, 2009: Lilly Ledbetter Fair Pay Act of 2009 Becomes Law. This article contains suggested actions for employers.

Final Regulations,  Coverage Under the Age Discrimination in Employment Act

72 Fed. Reg. 36873, July 6, 2007

The EEOC  is publishing this final rule to amend the ADEA regulations to conform them to the Supreme Court's holding in General Dynamics Land Systems Inc. v. Cline 540 U.S. 581 (2004), that the ADEA only prohibits discrimination based on relatively older age, not discrimination based on age generally. Thus, the final rule deletes language in EEOC's ADEA regulations that prohibited discrimination against relatively younger individuals. The new rule explains that the ADEA only prohibits employment discrimination based on old age and, therefore, does not prohibit employers from favoring relatively older
individuals.

Proposed Regulations 68 Fed. Reg. 41542 (July 14, 2003)

In this proposed new rule, the EEOC proposes an exemption which permits employee benefit plans to lawfully provide health benefits for retired participants that are altered, reduced or eliminated when the participant is eligible for Medicare health benefits or for health benefits under a state-sponsored retiree health benefits program. No other aspects of ADEA coverage or benefits other than retiree health benefits are affected by this exemption. The rule is in response to rising health care costs, and also in response to the negative aftermath of a 3rd Circuit decisison, Erie County Retirees Ass'n v. County of Erie, 220 F.3d 193 (3rd Cir. 2000).

In an attempt to comply with the court's ruling, the county transferred younger retirees from the hybrid point-of-service plan--where each retiree had the ability to select between HMO or traditional indemnity plan coverage on an as-needed basis--to an HMO plan similar to that available to retirees over age 65 that did not provide such an option. Erie County Retirees Ass'n v. County of Erie, 192 F. Supp.2d 369, 372 (W.D. Pa. 2002). The county also required employees not yet eligible for Medicare to pay a monthly amount for such coverage equal to the monthly amount of Medicare Part B premiums that retirees over age 65 paid. (Portions of text taken from Federal Register) See the FR link for a Q and A on the proposed regulation.

Waiver of ADEA Claims: EEOC final regulations

On Dec. 11, 2000, the EEOC issued final regulations on what constitutes a valid ADEA waiver. See 65 Fed. Reg. 77437. This document contains guidance to employers drafting waiver provisions. The regulations state that a person who challenges a waiver or covenant not to sue need not tender back consideration before filing a lawsuit or EEOC charge. The waivers may not provide for employer recovery of costs, attorney fees or damages when an employee sues under the ADEA, although employers may recover same when claims are filed in bad faith. The issue of severability for an invalid provision is touched upon, but not decided. In part the final regulations state " The Commission believes, however, that contrary to the position advanced by the employer, there is a strong argument that inclusion of an invalid provision in an ADEA waiver agreement-- such as a tender back clause or a damages provision--should invalidate the entire waiver."  The regulations are effective Jan. 10, 2001.

EEOC Fact Sheet: Facts about Age Discrimination
 

 Selected Case Law Under ADEA

Compliance Manual:  Portions of the EEOC compliance manual are available online at http://www.eeoc.gov/policy/compliance.html. Section 3, "Employee Benefits," added on October 3, 2000, explains how the employment discrimination laws apply to life and health insurance benefits, long-term and short-term disability benefits, severance benefits, pension or other retirement benefits, and early retirement incentives. The section covers discrimination in these benefits under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964 (Title VII), and the Equal Pay Act  (EPA). The full text of Section 10 of the Compliance Manual covering complaints of Compensation Discrimination was issued December 5, 2000, by the EEOC. This section covers complaints of discrimination in compensation based under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964  (Title VII), and the Equal Pay Act  (EPA). The following are examples of compensation discrimination addressed in the Compliance Manual:

Title VII, the ADEA, and the ADA prohibit discrimination in "compensation" based on race, color, religion, sex, national origin, age, disability, or protected activity.