Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act (ADEA) applies to employers with 20 or more employees and protects employees and applicants who are 40 years of age or over from discrimination in the workplace because of their age. If an employee is claiming they were replaced by or passed over for hire by a younger employee, they must show that the younger employee was substantially younger. The courts are not in consensus about how many years younger constitutes substantially younger, but the minimum number of years required by any court is three years. An employer can avoid liability for age discrimination when they can establish a bona fide occupational qualification (BFOQ) which requires an employee to be younger than the employee claiming age discrimination.

Older Workers Benefit Protection Act (OWBPA)

When an employer is considering laying off employees that are 40 or over, they should consider having the employees sign a waiver of their ADEA claims. Such waivers are governed by the Older Workers Benefits Protection Act (OWBPA) and must be drafted and executed according to that law. The basic requirements of a OWBPA release are:

  • it must be written in a manner calculated to be understood;
  • it must specifically refer to rights or claims protected under the ADEA;
  • it must only address rights or claims which arose on or before the date it is executed;
  • the employee must be advised in writing to consult with an attorney;
  • the employee must be given at least 21 day to consider signing the release before executing them; and
  • the employee must be given 7 days after signing it to revoke it.

If the release is used in connection with a group program, the employer must also inform the employees of:

  • any class, unit, or group covered by the program;
  • the eligibility factors for the program; and
  • any time limits applicable to the program.