How Age Discrimination Laws Protect Older Workers

The $113 Million Verdict That Shook Corporate America

In 2018, a federal jury in Kansas City awarded $113 million to two former Sprint executives who proved the telecom giant had fired them because of their ages—58 and 60 at the time of termination. The verdict stands among the largest age discrimination awards in American history. Despite the ADEA's existence since 1967, age bias remains pervasive. The EEOC received 11,281 age discrimination charges in fiscal year 2023, representing 19.4% of all workplace discrimination complaints. AARP surveys consistently find that two-thirds of workers over 45 have witnessed or experienced age discrimination on the job.

ADEA Coverage and Basic Protections

The Age Discrimination in Employment Act of 1967 prohibits employment discrimination against individuals aged 40 and older. The law covers employers with 20 or more employees, employment agencies, labor organizations with 25 or more members, and federal, state, and local governments.

Protected employment actions include:

• Hiring and recruitment decisions
• Firing, layoffs, and reductions in force
• Promotions and demotions
• Compensation, benefits, and terms of employment
• Job assignments, training, and apprenticeship programs
• Harassment creating a hostile work environment based on age

The ADEA does not protect workers under 40 from age discrimination, even if a 30-year-old is passed over in favor of a 50-year-old because of age. Some states have broader protections—New York, California, and several others prohibit age discrimination against workers of any age.

Disparate Treatment Versus Disparate Impact

Age discrimination claims take two primary forms. The Supreme Court's treatment of each form has diverged significantly.

Gross v. FBL Financial Services (2009) made disparate treatment claims harder to win. The Court held that ADEA plaintiffs must prove age was the "but-for" cause of the employer's action—not merely a motivating factor alongside other considerations. This standard is tougher than Title VII's mixed-motive framework, where a plaintiff need only show the protected characteristic was a motivating factor.

Disparate impact claims under the ADEA are available but weaker than their Title VII counterparts. In Smith v. City of Jackson (2005), the Court recognized disparate impact claims under the ADEA but accepted the "reasonable factors other than age" (RFOA) defense—a lower bar than Title VII's business necessity standard.

The BFOQ Defense

The ADEA permits age-based employment decisions when age is a bona fide occupational qualification (BFOQ) "reasonably necessary to the normal operation of the particular business." Courts interpret this exception narrowly. Successful BFOQ defenses almost always involve safety.

• Commercial airline pilots face mandatory retirement at 65 under FAA regulations (raised from 60 in 2007)
• Federal law enforcement officers and firefighters are subject to mandatory retirement at 57 (with 20 years of service)
• Corporate executives with pensions above $44,000 can be mandatorily retired at 65
• State and local police and firefighters may face mandatory retirement under state law

An employer claiming a BFOQ defense must demonstrate that the age limit relates to the essence of the business and that substantially all individuals above the age limit cannot perform the job safely, or that individual assessment is impractical.

The EEOC Charge Process

Before filing a federal lawsuit, ADEA plaintiffs must file a charge of discrimination with the Equal Employment Opportunity Commission. Strict deadlines apply.

The EEOC resolves most charges through dismissal, mediation, or conciliation. Only a fraction result in EEOC-initiated lawsuits. In fiscal year 2023, the EEOC secured $22.6 million in monetary benefits for age discrimination claimants through administrative enforcement alone, before litigation.

Reductions in Force: Where Age Claims Concentrate

Layoffs and restructurings generate a disproportionate share of age discrimination claims. The Older Workers Benefit Protection Act of 1990 (OWBPA), an amendment to the ADEA, imposes specific requirements when employers seek liability releases from older workers in exchange for severance packages.

For group layoffs, the OWBPA requires:

• 45-day consideration period for the severance agreement
• 7-day revocation period after signing
• Written disclosure of the job titles and ages of all employees selected and not selected for layoff
• Clear and specific language advising the employee to consult an attorney
• Adequate consideration beyond benefits the employee is already entitled to receive

Failure to comply with any OWBPA requirement renders the release unenforceable, even if the employee signed it and accepted the severance payment.

Emerging Trends in Age Discrimination Law

Technology-sector layoffs since 2022 have renewed focus on age discrimination in an industry that celebrates youth culture. The median age of workers at major tech companies hovers around 30 to 33, well below the national workforce median of 42. Age discrimination claims from the tech sector increasingly cite algorithmic hiring tools that screen out candidates with more than 10 or 15 years of experience—a proxy for age.

The EEOC's strategic enforcement plan for 2024-2028 specifically identifies age discrimination in hiring, particularly the use of artificial intelligence tools that disproportionately exclude older applicants, as an enforcement priority. The intersection of algorithmic decision-making and age protection law will shape ADEA jurisprudence for years to come.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Individual circumstances vary significantly. Consult a qualified attorney for personalized guidance.