Age Discrimination

Illegal treatment of employees or job applicants less favorably because of their age — federal law protects workers 40 and older.

Age discrimination in employment is prohibited by the Age Discrimination in Employment Act (ADEA) of 1967, which covers workers 40 years of age and older. The ADEA prohibits employers with 20 or more employees from discriminating based on age in hiring, firing, pay, promotions, job assignments, training, or any other term or condition of employment. It also prohibits harassment based on age and retaliation against employees who assert their rights under the law.

Age discrimination is among the most common and underreported forms of employment discrimination. It can be overt (refusing to hire someone because they're 'overqualified' or 'won't fit with our young culture') or subtle (consistently passing over older workers for promotions, targeting them disproportionately in layoffs, or pushing them toward early retirement). During reductions in force, employers must be particularly careful — selecting employees for layoff based on salary or seniority can have an unlawful disparate impact on older workers if the result disproportionately affects the 40+ population.

Proving age discrimination is challenging. The Supreme Court's 2009 decision in Gross v. FBL Financial Services raised the standard for ADEA claims, requiring plaintiffs to prove that age was the 'but-for' cause of the adverse action — a harder bar than the mixed-motive standard available for Title VII race and sex discrimination cases. In practice, this means documenting everything: written comments, performance review changes, decisions about promotions, and the demographics of who was laid off versus retained.

Signs of Age Discrimination

  • Being passed over for promotions in favor of significantly younger, less experienced peers.
  • Receiving negative performance reviews after years of positive evaluations, without explanation.
  • Being targeted in a layoff while younger peers in similar roles are retained.
  • Comments about being 'overqualified,' 'set in your ways,' or 'not a cultural fit.'
  • Job postings using language like 'digital native,' 'recent graduate,' or 'high energy' to screen out older applicants.
  • Being excluded from training, development opportunities, or key projects given to younger colleagues.

Filing an ADEA Claim

  • File a charge with the EEOC before suing — this is a required prerequisite for federal ADEA claims.
  • You generally have 180 days to file (300 days in states with their own age discrimination agencies, which includes most states).
  • The EEOC will investigate and either find cause, attempt conciliation, or issue a 'right to sue' letter.
  • Once you receive a right to sue letter, you have 90 days to file in federal court.
  • Many states (California, New York, New Jersey) have their own age discrimination laws that offer broader protections — covering smaller employers, lower burdens of proof, and longer filing windows.
  • Consult an employment attorney early — the deadlines are strict and evidence preservation matters.

Your Rights When Signing a Severance Agreement After a RIF

When older workers are laid off as part of a group reduction, the Older Workers Benefit Protection Act (OWBPA) — an amendment to the ADEA — gives them specific rights before signing a severance agreement that waives age discrimination claims. You must be given at least 45 days to review the agreement (21 days for individual terminations), a 7-day revocation window after signing, written advice to consult an attorney, and a disclosure listing the ages and job titles of everyone in the 'decisional unit' who was and was not selected for the RIF. This last disclosure is valuable — it lets you see whether the layoff disproportionately targeted older workers. If any of these requirements are missing, the waiver of your ADEA claims is not valid.

Example

A 58-year-old marketing director is laid off in a restructuring. She's replaced six months later by a 34-year-old at significantly lower pay. Her ADEA charge alleges the layoff was a pretext to replace her with a younger, cheaper employee. The EEOC finds reasonable cause and the company settles for back pay plus a commitment to revise its RIF selection criteria.