What Is the Age Discrimination in Employment Act?

At SpaceX, John Johnson once stood as a principal optics manufacturing engineer, overseeing crucial aspects of rocket technology. But in his early 60s, Johnson found himself sidelined as younger workers received coveted opportunities, leading him to file an age discrimination complaint with the state of Washington against Elon Musk’s aerospace giant in 2022.¹

SpaceX is among the many companies facing complaints of age-related workplace discrimination, a problem that has plagued numerous sectors despite the protections offered by the Age Discrimination in Employment Act (ADEA). Proving such discrimination can be daunting, akin to a modern-day David facing Goliath. Considering that Johnson’s case never seems to have been brought to court, those alleging age discrimination in employment need to better understand the ADEA.

Overlooking ageism within organizations comes with steep consequences: By 2050, projected losses due to age discrimination could soar to $3.9 trillion in lost productivity.² This post explores what employers and employees need to know about the Age Discrimination in Employment Act, the process for filing discrimination complaints and the remedies that are available.

The ADEA was enacted in 1967 to combat age-related discrimination in the workplace. Its scope encompasses various facets of employment, ensuring that individuals aged 40 and above are shielded from unfair treatment based solely on their age. This protection extends to hiring practices, job assignments, promotions and terminations, among others.³

Protecting older workers isn’t just about legal compliance; it’s about fostering a work environment that values experience, wisdom and diversity of perspectives. As an employment law expert, you can champion these values and advocate for equitable treatment across generations.

At the core of the ADEA are provisions that define age discrimination in employment and outline actions that are strictly prohibited. Discrimination can manifest in various forms, from biased hiring decisions to unequal compensation or benefits based on age.⁴ Lawyers specializing in this area must grasp these nuances to effectively represent their clients, whether older workers or businesses.

In addition, understanding the coverage and exemptions under ADEA is vital. While the act generally applies to companies with 20 or more employees, certain exemptions exist for specific roles and industries. Navigating what crosses the line requires a deep dive into legal precedents and regulatory guidelines related to:³

• Employment Notices and Advertisements: It’s unlawful to include age preferences, limitations, or specifications in job notices. However, including a preference for “over age 50” or “retirees” is permissible
• Bona Fide Occupational Qualification (BFOQ): Discrimination based on age is prohibited unless age is crucial for job performance
• Retirement: The ADEA itself does not mention retirement status. The Equal Employment Opportunity Commission and the courts have held that actions based on retirement status are acceptable if age isn’t the motivating reason
• Harassment: ADEA forbids harassment based on age, including offensive remarks that create a hostile environment or lead to adverse job decisions
• Retaliation: It’s illegal to retaliate against those opposing age discrimination or participating in related proceedings. This includes providing training on age-related inquiries, preventing harassment based on age, and ensuring equal pay and benefits for older workers 

By embedding these principles into organizational culture, employers not only comply with ADEA but also cultivate a positive and productive work environment for employees of all ages.

The U.S. Equal Employment Opportunity Commission (EEOC) encourages direct filing of age discrimination complaints, offering guidance and assistance throughout. Knowledgeable legal counsel can help a complainant better understand their rights. However, retaining counsel is optional.⁴ Employment lawyers can represent plaintiffs in legal proceedings and collaborate with the Equal Employment Opportunity Commission. This involves participating in investigations and pursuing legal action based on findings.

• File a Charge: Submit a formal complaint to the EEOC within specified timelines4 
• Investigation: EEOC conducts interviews, requests documents and reviews employer responses. Agencies are required to complete an investigation within 180 days of the filing of a complaint⁵
• Mediation or Conciliation: The Equal Employment Opportunity Commission offers informal resolution options
• Right-to-Sue: If not resolved, EEOC issues a Right-to-Sue letter for federal court action within 90 days⁶

Filing with the EEOC is pivotal in addressing age discrimination, potentially leading to mediation, conciliation, or legal remedies. The agency's meticulous approach aims to safeguard client rights and promote discrimination-free workplaces.

To be awarded remedies, a worker must prove that they were subjected to employment discrimination in violation of the Age Discrimination in Employment Act.

Type of remedies may include:⁷

• Back pay and benefits
• Hiring, promotion or reinstatement
• Stopping discriminatory practices and preventing future discrimination
• Recovery of attorney’s fees, expert witness fees and court costs

In intentional age discrimination or Equal Pay Act cases, victims may get liquidated damages equal to back pay if malicious acts are proven. In addition, there are no statutory caps on compensatory and punitive damages, so courts can award amounts based on the circumstances of each case.⁷

Age-related workplace discrimination often stems from entrenched stereotypes and myths that undermine the capabilities of older workers. According to the Society for Human Resource Management (SHRM), about 49% of managers believe older workers are less competent with technology, and 48% consider them stubborn and grumpy.⁸

Yet, throughout history, individuals have achieved great things at age 40 and beyond. Nelson Mandela took office as the first president of a democratic South Africa at age 75; KFC’s Colonel Sanders built a successful business empire in his sixties; Vera Wang launched her iconic bridal boutique at 40—and the list goes on.^{9,10, 11} Despite these examples, age-related biases persist, leading to older workers being unfairly sidelined—their talents are often overlooked or undervalued.⁸

Some have even been passed over for promotions or been bullied into retirement.¹ These discriminatory practices not only harm individuals but also deprive companies of diverse perspectives, institutional knowledge and potential innovation.² To realize their full potential, organizations should challenge age-related stereotypes by hiring and valuing older workers. Further, organizations must keep up with evolving issues in age discrimination laws to avoid the financial liabilities and reputational harm of age discrimination claims.

Meticulous record-keeping and documentation are central to promoting age equity. Employers must maintain records of hiring, promotion decisions and compliance with ADEA guidelines. Human resources departments play a crucial role in this regard, ensuring that practices align with legal requirements and facilitating a culture of transparency and accountability.

Age discrimination is prevalent in U.S. workplaces, with AARP Research reporting that 78% of older workers faced or witnessed such discrimination in 2020.² During that same year, the Equal Employment Opportunity Commission received over 14,000 age discrimination claims, and secured $76.3 million in monetary benefits for claimants.²

Two recent settlements highlight the pervasive issue of workplace discrimination based on a person's age:¹²

• Scripps Clinic Medical Group: On December 19, 2023, the San Diego-based medical group settled an age and disability discrimination case, agreeing to pay nearly $7 million. The case involved imposing a mandatory retirement age of 75 for physicians, which the EEOC said violates federal law. The settlement requires them to rescind this policy and provide anti-discrimination training
• Lilly USA: In October 2023, the Indianapolis-based pharmaceutical corporation settled a nationwide employment discrimination class lawsuit with the EEOC, agreeing to pay $2.4 million. The lawsuit alleged discriminatory practices in hiring that denied opportunities to older pharmaceutical sales representatives

These cases underscore how important it is for companies to ensure fair treatment for all applicants and employees regardless of age.

High-profile lawsuits, such as those against Lilly and SpaceX, underscore the high costs of age discrimination. Employment law experts can help companies avoid these costs through guidance on how to ensure compliance with anti-discrimination laws and foster more inclusive and equitable workplaces.

Proactive steps may include:¹³

• Hiring experts at all age levels and creating intergenerational teams
• Educating employees on inclusive behaviors during onboarding
• Conducting an age equity audit of current policies and incorporating age in anti-discrimination policies
• Eliminating ageist language and generational stereotypes internally

The evolving legal landscape underscores the critical need to promote age diversity and equity in the workplace. Many Americans are delaying retirement out of necessity or a desire for continued engagement. Organizations should be prepared for this trend by ensuring their policies and practices support age diversity.

Understanding the Age Discrimination in Employment Act is essential for fostering an inclusive work environment. It will help you protect workers and job applicants from workplace discrimination and help protect your organization from age discrimination claims. The Master of Jurisprudence in Labor & Employment Law program at Tulane Law (MJ-LEL) equips you with the expertise to navigate complex employment laws effectively.

Become skilled in the nuances of employment law through the MJ-LEL's targeted curriculum, and you’ll be well-prepared to advocate for age equity and support a positive work environment in your organization. Don’t wait to start moving up. Schedule a call with our admissions team today to get started.