ADEA and Age Discrimination
40+
Protected Age
Only protects older workers
20+
Employees
Employer coverage threshold
1967
Year Enacted
Amended by OWBPA in 1990
What ADEA Protects
this is a one-way streetThe Age Discrimination in Employment Act protects individuals who are 40 years of age or older from discrimination in hiring, promotion, discharge, compensation, and other terms and conditions of employment.
The protection is strictly one-directional. ADEA does NOT protect younger workers. A 30-year-old who is passed over in favor of a 55-year-old has no ADEA claim. A 60-year-old who is passed over in favor of a 45-year-old does have a claim, because both are 40+ and the older worker was disadvantaged.
40+
Protected Age
Only workers aged 40 and older are covered
20+
Employer Size
Only employers with 20+ employees are covered
OWBPA Waiver Requirements
heavily tested, memorize every numberThe Older Workers Benefit Protection Act (1990) amended ADEA to regulate how employers can ask workers to waive their age discrimination rights. Every valid OWBPA waiver must satisfy ALL of the following requirements.
- 1
The waiver must be written in plain language the employee can understand
- 2
It must specifically reference ADEA rights and claims
- 3
The employee cannot waive rights to future claims, only existing ones
- 4
The employee must receive something of value (consideration) beyond what they are already owed
- 5
The employee must be advised in writing to consult an attorney
- 6
The employee gets 21 days to consider (45 days for group layoffs)
- 7
The employee gets 7 days to revoke after signing
21 days to consider (45 days for group layoffs), and allow 7 days to revoke. If the employer shortens either window, the entire waiver is invalid.
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BFOQ Can Apply to Age (Narrowly)
Age can be a bona fide occupational qualification in very rare cases, like airline pilots or bus drivers where safety is directly at stake. The bar is extremely high.
Threshold Is 20, Not 15
Title VII covers employers with 15+ employees. ADEA requires 20+. If an exam question says 17 employees, ADEA does not apply.
"But-For" Causation Standard
Under Gross v. FBL Financial (2009), the plaintiff must prove age was THE reason, not just A reason. This is a higher standard than mixed-motive under Title VII.
Mandatory Retirement Is Generally Illegal
You cannot force someone to retire because of age. Limited exceptions exist for high-level executives with substantial pensions and certain public safety roles.
One-Directional
ADEA is one-directional. Only 40+.
OWBPA Waivers
OWBPA waivers need 21/45 days to consider + 7 days to revoke.
Imagine a mirror that only reflects one direction. ADEA only protects people on the 40+ side. If you are 25 and passed over for a 50-year-old, ADEA does not help you.
The mirror only exists in buildings with 20+ people. Smaller employers are not covered by ADEA at all.
If an employer asks you to sign away your ADEA rights, there are strict timing rules. You get 21 days to think (45 if it is a group layoff) and 7 days to change your mind after signing.
To win, you must prove age was THE decisive factor, not merely one factor among many. This "but-for" standard is harder than the mixed-motive standard under Title VII.
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