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Age Discrimination in Employment ActNovember 27, 2012

ADEA Overview

The Age Discrimination in Employment Act (ADEA) is part of a statutory scheme protecting employees over 40 years old against discrimination in the workplace nationwide.  The ADEA which was passed by Congress in December of 1967 points out the disadvantage of older workers in retaining employment or regaining employment when displaced from jobs. The ADEA addresses arbitrary age limits which were commonplace at the time of its passage, and embodies congressional recognition that older workers are particularly at risk for long term unemployment. Congress further recognized the undesirable effects of long term unemployment including deterioration of skill, morale and employer acceptability.

Purpose of ADEA

Congress passed the ADEA to address the practice of employment discrimination against older workers, and especially to redress the difficulty such workers faced in obtaining new employment after being released from their jobs. The ADEA’s stated purpose, therefore, is;

  • to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment. 29 U.S.C. §621(b).

Organizations Covered by ADEA

The ADEA’s prohibitions against age discrimination apply to employers, employment agencies and labor organizations. Those protected by the ADEA are individuals who are at least 40 years of age.

  • Employers— A covered employer is one who is “engaged in an industry affecting commerce who has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. §630(b). It is an unlawful employment practice for a covered employer “to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s age.” 29 U.S.C. §623(a).
    • Additionally, employers are not permitted to limit, segregate or classify employees in ways which would negatively affect their employment status because of age. Employers may not reduce the wage rate of any employee because of age.
  • Employment Agencies — Employment agencies are prohibited from declining to refer for employment or otherwise discriminating against any individual because of the individual’s age. The ADEA defines an employment agency as a person who regularly undertakes to procure employees for an employer or an agent of such a person whether the person works with or without compensation.
  • Labor Organizations — Labor organizations are prohibited from discriminating in offering the privileges of membership or declining to refer for employment individuals in the protected age group. They are also prohibited from attempting to cause an employer to discriminate against protected individuals on the basis of age. A labor organization to be covered must maintain or operate a hiring hall or hiring office or have 25 or more members. In addition, it must either be certified as a bargaining representative under the National Labor Relations Act or the Railway Labor Act, or be a national or international organizations which is recognized or acting as a bargaining representative in an industry affecting commerce.

Persons Protected by ADEA

The ADEA protects employees age 40 and older. The ADEA defines “employee” as any individual employed by an employer, including U.S. citizens employed in a foreign country. The ADEA protects individuals, not 40 year-olds as a class. Age discrimination is the act of holding an individual’s age against him or her. The ADEA prohibits discrimination on the basis of age and not class membership. The fact that a worker over age 40 is replaced by someone substantially younger is a far more reliable indicator of age discrimination than is the fact the replacement worker is under age 40.

In addition, it is also unlawful to retaliate against an employee for opposing an ADEA violation, filing an ADEA charge, or otherwise participating in enforcement of the ADEA.

Statutory Scheme

The ADEA is part of a statutory scheme protecting employees. Other parts of this scheme include the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Rehabilitation Act of 1973, and numerous state and civil rights laws. Knowledge of these laws and their effect on workers’ rights can be invaluable when navigating the difficult issues associated with employment related claims.


Ryan A. Hintzen


The Hintzen Law Firm, PLLC

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