ADEA Basics

What is the Age Discrimination in Employment Act (ADEA), and are you in compliance?

The ADEA has been around since 1967. Here’s what it does:

• It prohibits employers with 20 or more full-time employees from discriminating against anyone who is 40 years old or older. This means employers cannot treat someone in a way that is less favorable simply because of their age. This is important not only in hiring but also in any employment decision. This includes (but is not limited to) hiring, firing or layoffs, promotions, pay, benefits, and training.
• The ADEA also prohibits harassment based on age. This is one aspect that employers should be careful not to overlook.

Employers should also be aware that the ADEA will still apply even if a policy is applied broadly but has a disproportionate impact on those 40 and over. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

Tips to Stay in ADEA Compliance

On the surface, ADEA compliance appears simple—after all, it seems straightforward to not discriminate on the basis of age. However, like many employment laws, this is one that employers may find themselves in trouble with inadvertently. Here are some tips to stay in compliance:

• Be careful with job ads. Don’t state a preference for younger workers. Employers should be willing to hire anyone who has the best qualifications for the role.
• Don’t limit benefits to only certain groups or age ranges. There are exceptions to this, but in general, benefits should be available to all groups. The primary exception applies for situations in which the benefit costs more to administer to older workers. In some cases, it is acceptable to change the benefit for older workers as long as the amount spent to achieve the new benefit level is the same as the amount spent for the benefit provided to younger workers.
• Ask for an applicant or employee’s age only if it is truly necessary for a business-related purpose. For example, it’s safer to ask if the applicant is over the age of 18 on the application than to ask for a birth date. While it is not specifically against the law to ask about age, doing so can appear discriminatory on its face, even if the information is not used in such a way. It can also discourage older employees from applying. Be careful about inquiring about age indirectly as well, such as asking for the year of graduation from high school or college. The same is true for employment forms beyond applications—if age is not necessary, don’t ask.
• Don’t set age limits for specific programs, such as training programs.
• Don’t have any mandatory retirement programs, especially age-related. If you want to offer a retirement program, make it voluntary and not dependent on age. (There are narrow exceptions to this; if you think you might have an exception, speak with a labor law attorney to be sure.)
• If you’re implementing a reduction in force (RIF), ensure your severance package includes a waiver or release. Also, be sure that your RIF does not intentionally or unintentionally target older workers.
• Promote based on performance, not based on time with the organization. (The same goes for bonuses—make them correlate with performance.)
• • Train your teams:
• Those involved in the hiring process should understand how to avoid age discrimination altogether. Include information on stereotypes and bias.
• Train teams on the importance of not creating an environment that appears discriminatory or harassing. This can extend to things like age-related jokes if taken too far. Perception can fuel lawsuits, even if no decisions were made based on age.
• Also, train managers on staying away from age-related commentary in performance reviews and other documents or communications.
• Don’t make assumptions related to age. For example, don’t assume that an older worker cannot learn a new technology. Give all employees the same opportunity to learn. These assumptions can be especially difficult to combat depending on the company culture.
• Be consistent in applying your policies. Don’t hold different employees to different standards.
• Be aware of inadvertent targeting of specific age groups. For example, be sure that job postings are distributed in ways that they will reach applicants of all ages, not just youth.
• When creating employee development or high-potential employee programs, do not (even inadvertently) overlook older employees. Just because an employee has been in the workforce longer does not automatically mean they don’t need or want development, nor does it mean they’re not high-potential.

Employers should also note that age discrimination laws at the state level could extend to employers with fewer than 20 employees. Your state may have laws that protect workers of other ages as well. Be sure to check state and local laws.

**This article does not constitute legal advice. Always consult legal counsel with specific questions.**
 

About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.