The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against persons aged 40 years or older in hiring, discharge, compensation, terms, conditions or privileges of employment. This includes limiting, segregating or classifying an employee in a way that could deprive an employee of an employment opportunity.

The U.S. Supreme Court has held that inaccurate stereotyping of the elderly is “the essence of what Congress sought to prohibit in the ADEA.” The Court has further held that the ADEA “requires the employer to ignore an employee’s age... it does not specify further characteristics that an employer must also ignore.” Thus, where an employer bases an adverse employment decision on the belief that older employees are less efficient or less productive, the employer violates the ADEA.

On the other hand, when an employer bases a decision on factors other than age, it does not violate the ADEA even if the motivating factors are correlated with age such as pension status or years of service. Whether an employer violates the ADEA thus depends on whether age actually motivates the employer’s decision.

It does not matter if the newly hired employee is 40 years of age or older if the employer fired the first employee based on that employee’s age.

The Supreme Court has cautioned, however, that an inference of age bias “cannot be drawn from the replacement of one worker with another worker insignificantly younger.” According to most federal courts, five years is a reasonable threshold establishing a significant gap for the purpose of establishing age discrimination.

No, although the ADEA when originally enacted only protected employees to the age of 70, Congress repealed that upper-age limit. The ADEA does allow the imposition of age limits for certain professions if evidence shows the ability to perform a particular job significantly diminishes with age or imposes a danger to society. This type of limit is termed a bona fide occupational qualification (BFOQ). Courts have interpreted the ADEA as allowing the imposition of age limits on professions such as airline pilot and bus driver because research shows ability to perform these occupations decreases with age.

Because the ADEA imposes no upper-age limit for coverage, it generally prohibits employers from requiring employees to retire at a certain age. However, if an employer establishes a BFOQ, the ADEA allows the employer to set a mandatory retirement age.

In most ways, discrimination based upon age is no different than discrimination based on other protected classes, such as race or sex. Courts have generally established the following rules unique to age discrimination cases:

1. If the same supervisor who recommended hiring an employee recommends firing that employee within a year or so of employment, courts assume that termination was not because of age. Courts believe that if a supervisor discriminates against older people, he would not have recommended hiring the employee in the first place.
   
   
2. If an employer fires an employee in a reduction in force and does not replace that employee, courts will require direct evidence of age discrimination, such as remarks suggesting the employer should use the opportunity to get rid of old people.

Generally yes, but only if a requirement relates to the essential functions of a job. For example, a requirement that a maintenance department employee lift 50 pounds on a regular basis probably relates to the functions of that job, but the same requirement would not relate to the functions of most sedentary jobs. An employer who imposes requirements for hiring that do not relate to a job’s essential functions and disproportionately impact older workers, violates the ADEA.

Generally no, although an employer can request an applicant’s number of years of experience in the minimum requirements of the job. An employer cannot ask questions directly relating to age, such as the date an applicant graduated from high school, the date of the applicant’s first employment experience, or dates of military service.

The federal court has held that general ageist comments made by supervisors or other employees may demonstrate employer age bias. Nearly all courts have held specific remarks aimed at older workers such as “old and burnt out,” or remarks suggesting older employees do not fit the employer’s mold of “young aggressive employees,” may demonstrate employer age bias.

An employer should prohibit the use of age-related remarks by all employees, whether or not they are supervisors.

An employee may establish that an employer’s motivation for unfavorable treatment was age bias by direct evidence of discrimination or infer discrimination by showing (a) the employee is aged 40 or older; (b) the employee performed his job satisfactorily; (c) the employer terminated or demoted the employee; (d) the employer filled the position with a younger employee.

An employer can refute an employee’s initial inference of age discrimination by showing it based the employee’s treatment on a legitimate nondiscriminatory reason.

An employee may have a right to be hired, reinstated or promoted. An employee may also be entitled to unpaid wages and liquidated damages.