ADEA Age Discrimination Law: Protections for Workers 40 and Over

Congress Passed the ADEA in 1967, but Employers Still Cut Older Workers First

The Age Discrimination in Employment Act of 1967 was a response to a documented pattern: employers routinely advertised jobs specifying maximum age limits, forced retirement at 65, and laid off senior workers to cut payroll costs. Congress made those practices illegal. The ADEA prohibits discrimination against employees and applicants who are 40 years of age or older in hiring, firing, pay, job assignments, promotions, layoffs, training, and any other term or condition of employment. Unlike Title VII's race and sex protections, ADEA protections apply only to workers age 40 and above — a 39-year-old discriminated against because of age has no federal ADEA claim.

Disparate Treatment vs. Disparate Impact

Two legal theories govern ADEA claims. Disparate treatment — the more common claim — requires proving that age was the but-for cause of the adverse employment action. This is a higher bar than Title VII's "motivating factor" standard, established by the Supreme Court in Gross v. FBL Financial Services (2009). Jack Gross, a 54-year-old claims administration director, was demoted after FBL was restructured. The Court held that an ADEA plaintiff must prove by a preponderance of evidence that age was the reason — not merely a motivating factor — for the employer's decision.

Disparate impact claims allege a facially neutral policy disproportionately harms older workers. The Court confirmed in Smith v. City of Jackson (2005) that disparate impact claims exist under the ADEA but — unlike under Title VII — the employer can justify a challenged practice by showing it was based on a "reasonable factor other than age" (RFOA), a more defendant-friendly standard.

The EEOC Charge Process

Before filing an ADEA lawsuit in federal court, a worker must exhaust administrative remedies. File a charge. First, with the Equal Employment Opportunity Commission (EEOC) — or a state fair employment practices agency (FEPA) in states with their own laws. Strict deadlines apply: 180 days in states without a FEPA, 300 days in states with one. Missing the deadline generally bars the claim entirely.

After the charge is filed, the EEOC notifies the employer and may investigate. Most charges are resolved through mediation or dismissed without EEOC involvement. If the EEOC finds reasonable cause, it attempts conciliation. If conciliation fails, the EEOC can sue — or issue a Notice of Right to Sue, allowing the worker to file in federal court within 90 days. Unlike Title VII, the ADEA does not require the EEOC's permission to sue — the worker can proceed after 60 days from charge filing even without a Right to Sue letter.

• File within 180 or 300 days of the discriminatory act (the clock starts at the act, not discovery)
• Retaliation for filing an EEOC charge is separately prohibited under the ADEA
• The charge is confidential — the EEOC does not publicly disclose it
• Federal employees follow a different process (EEO counselor within 45 days)

The Severance Agreement Trap

Employers frequently offer severance packages during layoffs — particularly large-scale reductions in force targeting higher-salary (and often older) employees — conditioned on signing a waiver of ADEA claims. The Older Workers Benefit Protection Act (OWBPA) of 1990 imposes specific requirements for such waivers to be valid. Not just any waiver will do.

Failing any single OWBPA requirement voids the waiver entirely — even if the employee cashed the severance check. Courts have held that an employer cannot condition return of the severance on the validity of the waiver once it has been declared void for OWBPA non-compliance.

Mixed-Motive Claims and the Gross Decision's Aftermath

Mixed-motive claims arise when both legitimate and discriminatory reasons contributed to a decision. Under Title VII, plaintiffs can win even if age was only a "motivating factor" among others. Gross eliminated that path for ADEA plaintiffs — age must be the decisive, but-for cause. This makes ADEA claims significantly harder to win than comparable Title VII race or sex discrimination claims when the employer articulates any plausible business reason.

Legislative attempts to reverse Gross have repeatedly stalled in Congress. The Protecting Older Workers Against Discrimination Act (POWADA) has been introduced in multiple sessions without passing, which would restore the "motivating factor" standard. As of 2026, the Gross but-for standard remains the law.

• The Seventh and Second Circuits have interpreted Gross narrowly, allowing some circumstantial evidence of age motivation
• EEOC charge statistics: age discrimination charges average over 15,000 per year
• Only about 17% of ADEA charges result in any relief for the charging party
• Mandatory retirement policies remain legal for executives who are 65+ and entitled to >$44,000/year in pension benefits

This article is for informational purposes only and does not constitute legal advice.