There's an adage that individuals get wiser as they get older, but that saying doesn't help when it comes to older individuals keeping their jobs in downtimes. While federal law prohibits age discrimination in employee terminations, age-related firings increase by 3.4% for each percentage point increase in a state's unemployment rate, according to the National Bureau of Economic Research
Older employees who have been in the workplace for longer, and have accumulated years of raises resulting in higher pay, might be the target of a layoff or effort to reduce overall salaries. If a supervisor made derogatory remarks about an employee's age, or referenced wanting to bring in younger, cheaper workers to perform the same duties, a terminated older worker might actually have been the victim of age discrimination.
Laws That Protect Older Workers
Firing based on advanced age alone is against the law, but unlike other protected characteristics such as race and sex, age is not covered by Title VII of the Civil Rights Act of 1964. Employers are not required to offer accommodations related to age. In current times, that means if an older employee asks to work from home to avoid exposure to COVID-19 and its greater risk to persons of a certain age, an employer does not have to accommodate that request. At the same time, an employer cannot fire an older worker when reducing a workforce due to pandemic changes in business just because of that person's age and COVID-19 age-related risks
Older employees are instead protected mainly by two federal laws. The first, Age Discrimination in Employment Act (ADEA), forbids discrimination and harassment based on an individual's age. The ADEA applies to individuals who are age 40 or older working in businesses with 20 or more employees. The ADEA prohibits employers from discriminating against an older worker in any aspect of employment, including firing, hiring, pay, job assignments, promotions, layoffs, training, benefits, and any other term or condition of employment.
In 1990, Congress passed the second law, the Older Workers Benefit Protection Act (OWBPA), which amends the ADEA and protects older workers who have been fired. Under the OWBPA, it is illegal for employers to require older workers to sign a waiver of their rights to sue for age discrimination. Under the OWBPA:
- Older workers must be given at least 21 days to decide whether to sign a waiver.
- The waiver has to be written in understandable language.
- The employer must offer something of value over and above what is already owed, such as severance pay, in exchange for a signature.
The OWBPA also prohibits age discrimination in benefits. This law generally requires employers to provide equal benefits to older and younger workers. The law applies to health insurance, life insurance, disability benefits, and retirement plans.
Age Discrimination in Hiring and Other Practices
It's important for older workers to recognize other aspects of the ADEA to make sure they are not being discriminated against for their age. These include
- Employment notices or ads – it's generally illegal for employment ads to specify age preferences or limitations. An ad that seeks applicants “ages 25 to 35,” for example, would be considered unlawful under the ADEA. On the flip side, it's okay for a business to specify a preference for candidates who are retirees or who are over age 50.
- Bonafide occupational qualification (BFOQ) – a BFOQ means that an age limitation is necessary for a person to perform the duties of a job is. It is generally lawful. An example of a BFOQ would be a production company seeking an actor of a particular age to play a teenager.
- Harassment – ADEA prohibits the harassment of an individual because they are age 40 or older. This can include offensive remarks about a person's age. If the remarks create a hostile or offensive work environment, it violates the ADEA. The harasser can be a supervisor, co-worker, or even a contract employee.
- Employment policies and practices– an employment practice can be considered illegal under ADEA if it has a negative impact on employees or applicants age 40 or older– even if the practice is equally applied to all employees or job applicants. For example, a general criterion such as flexibility could be subject to age-based stereotyping, according to the Equal Employment Opportunity Commission (EEOC).