How Old is Legally “Old”?

While many might recognize that business cannot use “age” as a criterion for  employment decisions, including hiring, promotion, discipline or termination,  the federal and California protections actually only apply to persons “of a certain age.”   Workers under 40, the relatively “young,” do not have such rights.  Employees aged 40 or over, considered legally “old,” are protected.

Federal age discrimination protections – including the Age Discrimination in Employment Act of 1967 (ADEA) — also only apply to companies with 20 or more on payroll.  This is different than most other federal workplace anti-discrimination laws (race, gender, religion, etc.) which apply to businesses with 15 or more employees.  See, e.g., Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

All California’s workplace anti-discrimination law – the Fair Employment and Housing Act (FEHA) — applies to employers with five or more on payroll.

According to the federal Equal Employment Opportunity Commission (EEOC), ADEA protections include:

– Apprenticeship Programs – Employers with apprenticeship/internship programs should not restrict qualified applicants over age 39 from participation.    Only in rare circumstances when age is shown to be a “bona fide occupational qualification” (BFOQ) may an age limit be included. For example, a bar serving alcohol can legitimately restrict under-age apprentices or interns;

– Job Notices and Advertisements – It is generally unlawful to include age preferences, limitations or specifications in job notices or advertisements. For example, it is generally not a good idea to promote that “youth” or any particular age-range is a condition for hiring.  Again, only in those uncommon settings were age is a valid BFOQ may an age limit be included;

– Pre-Employment Inquiries – Similarly, except where a certain age range or age limit is a legitimate BFOQ, an employer should not request age information from job applicants.  Asking for a person’s age could be seen as evidence of an employer’s intent to discriminate. However, a company can obtain such information after hiring as long as the data gathering is not selective and is needed for a lawful purpose, for example insurance coverage.

– Benefits – The federal Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. However, as the cost of providing certain benefits to “older” workers (40 or over) is sometimes greater, Congress did include an exception.  Employers may reduce benefits available to older workers as long as the cost is  no less than the cost of benefits available to younger workers;

– Special Waiver Requirements – A company can offer a departing worker extra “severance pay” in exchange for that worker’s written promise never to bring a legal claim against that business or its management (a “release and waiver”).   However, such a waiver must comply with specific requirements in order to validly release ADEA claims.  The waiver  must:

▪ be in writing and be understandable;

▪ specifically refer to ADEA rights or claims;

▪ not waive rights or claims that may arise in the future;

▪ be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled;

▪ advise the individual in writing to consult an attorney before signing the waiver; and

▪ provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

This article is only a general overview of federal and California workplace age discrimination laws.  A knowledgeable employment law attorney should be able to guide personnel management through the perils and pitfalls of this sometimes very sensitive area.