The Age Discrimination in Employment Act of 1967 (ADEA) is a federal law that prohibits age-based employment discrimination. Specifically, the ADEA prohibits employers from discriminating against people 40 years of age or older. The ADEA also prohibits employers from retaliating against employees for asserting their legal rights under the law. In 1990, Congress passed the Older Workers Benefit Protection Act (OWBPA) amended the ADEA to offer even more rigorous protections for older workers. The OWBPA prohibits employers from excluding older employees from any employment benefits the employer provides younger employees. 

Despite strict federal, local, and state laws prohibiting age-based employment discrimination, it still occurs regularly. Many New York employees age 40 and older continue to face age discrimination in all stages of employment. Employees age 40 or older who’ve faced employment discrimination might be entitled to compensation. At Lipsky Lowe LLP, our skilled employment attorneys have helped many employees recover damages for age-based employment discrimination under the ADEA. To learn how we can help with an age discrimination claim, contact our New York City employment law firm today. 

What Types of Discrimination Does ADEA Prohibit?

The requirements of the ADEA do not apply to all employers throughout the United States. Only employers who employ 20 or more regular employees must abide by the provisions of the law. Only companies that engage in interstate commerce are required to follow the ADEA, although many businesses currently meet this requirement. ADEA applies to for-profit companies and non-profit organizations, local, state and federal governments. Employers cannot discriminate based on age in any of the following aspects of employment:

  • Hiring
  • Pay determinations
  • Job assignments
  • Job promotions
  • Layoff determinations
  • Providing training
  • Providing benefits
  • Any other condition or term of employment

To file a claim under the ADEA, the employee or job applicant must show that an employer hired a substantially younger employee. Federal courts have not come to a consensus on the definition of substantially younger. At a minimum, the plaintiff must be at least three years older than the employee or applicant selected by the employer over the plaintiff. Both the claimant and the applicant the employer hired can be over the age of 40. However, the claimant must be substantially older than the selected employee. 

The ADEA also prohibits programs and activities that receive federal financial funding from discriminating based on age. The Civil Rights Center enforces the Age Discrimination Act. When a program receives federal funding, it must abide by the discrimination prohibitions outlined in the ADEA. 

Exceptions to the ADEA

The ADEA does not prohibit age discrimination when an employer can prove that a bona fide occupational qualification required the employer to hire a younger employee. To establish a bona fide occupational qualification based on age, the employer must prove the following:

  • The age requirement must relate to an essential job duty
  • The age requirement should be considered necessary for the operation of the business
  • Employees age 40 or older would be unable to safely and efficiently perform the job

Examples of bona fide occupational qualifications based on age include mandatory retirement ages for airplane pilots and bus drivers. Typically, employers cannot force employees to retire because the employee is age 40 or older. However, requiring airplane pilots to retire when they reach a certain age is a bona fide occupational qualification because it promotes public safety. Achieving an advanced age does negatively affect a pilot or bus driver’s ability to fulfill his or her job duties. 

Examples of Age-Based Employment Discrimination 

Age-based discrimination in employment can take many different forms. In some instances, age-based discrimination is subtle yet systematic. In some other cases, it is easy to prove age-based discrimination because the employer or manager makes direct, discriminatory statements. Age-based discrimination could include any of the following circumstances:

  • An employer comment that he or she desires “youthful energy” or a “young perspective” 
  • An employer refuses to hire a potential employee because he or she is age 40 or older
  • An employer makes derogatory or offensive remarks regarding the employee’s age
  • An employer refuses to allow an older employee to attend training or learn new skills
  • An employer forces or pressures an older employee to retire
  • An employer demotes an employee based on the employee’s age
  • An employer frequently asks when an older employee plans to retire
  • An employer reduces an older employee’s salary because of his or her age
  • A manager or employer only socializes with younger employees
  • An employer fails to offer promotions to older employees but provides them to younger ones
  • An employer denies older employees favorable job opportunities 
  • An employer consistently displays a preference for younger employees

New York’s Age Discrimination Laws

In addition to the federal ADEA statute, New York State and the New York City Human Rights Law offer additional protections for older employers. New York State’s Human Rights Law prohibits employers from discriminating against a job applicant or employee based on his or her age. Employers with four or more employees must abide by this law. New York state and city laws mirror the ADEA and offer protection for employees who might not receive protection under federal law.

Employees subjected to age discrimination have a right to file a complaint with the New York State Division of Human Rights. Claimants must file within one year of the most recent act of age discrimination. Employees have a right to file directly in New York state court within three years of the most recent discriminatory act. If the Division finds that probable cause for age discrimination exists, it will conduct proceed with an administrative hearing held by an administrative judge. 

Our Attorneys Can Help

Employees over the age of 40 who face age-based discrimination may have a right to damages under the ADEA. ADEA remedies include compensatory damages, possible punitive damages, and possible reinstatement to the employee’s position. Contact Lipsky Lowe LLP today to learn how our New York City employment law firm can help you fight for your rights.