Purpose and coverage. The Age Discrimination In Employment Act (ADEA)1 prohibits employers from discriminating on the basis of age. Only persons who are forty years of age or older are allowed to bring suit under the ADEA. However, note that state statutes may allow for age discrimination claims if the employee or applicant is under the age of forty. The ADEA applies to employers, employment agencies and labor unions, and prohibits retaliation against persons for exercising or assisting in the exercising of rights under the ADEA.

The ADEA prohibits unlawful discrimination by an employer against an employee in any stage of the employment process. It prohibits discrimination against an individual with respect to his/her compensation, terms, conditions or privileges of employment because of the individual's age, prohibits deprivation of employment opportunities because of an individual's age, and prohibits reduction of the wage rate of an employee in order to comply with the ADEA. 2
The Act prohibits an employer, labor organization or employment agency from printing or publishing any notice or advertisement which indicates a preference or discrimination based on age.3
An employer does not violate the Act if age is a bona fide occupational qualification reasonably necessary to the normal operation of the business. Also, it is not a violation of the ADEA if the practices involve a workplace in a foreign country and compliance with the Act would cause the employer to violate the laws of that country.4

Mandatory retirement. The ADEA prevents mandatory retirement on the basis of age of any employee over age forty. Exceptions to this rule include the compulsory retirement of an employee who is at least sixty-five years of age and who was in a bona fide executive or high policy-making position for a two-year period immediately before retirement, if that individual will be entitled to non-forfeitable annual retirement benefits in the aggregate of at least $44,000.5 The ADEA was amended in September, 1996, to permanently reinstate an exemption in the ADEA which allows state and local governments to issue mandatory age requirements for hiring and firing firefighters and law enforcement officers. These exemptions have a number of qualifications and competent counsel should be consulted before making any employment related decisions. In addition, state and local laws prohibiting age discrimination may not have similar exemptions.

Age of replacement. The U.S. Supreme Court decidedO'Connor v. Consolidated Coin Caterers Corporation in April, 1996, and ruled that an individual claiming discrimination under the ADEA does not have to show that he or she was replaced by an individual under the age of 40 and outside the protected age group. The critical inquiry must be whether the employer discriminated against the individual because of his or her age.

OWBPA. The Older Workers Benefit Protection Act makes clear that employee benefits and benefit plans are subject to the ADEA. The Act affects early retirement incentive plans and permits certain offsets against severance and long-term disability. The OWBPA also sets out criteria that must be satisfied before ADEA rights are waived or released.6 This is discussed in more detail in Chapter Thirty-Six.

Remedies. The ADEA allows a plaintiff to recover back pay, liquidated damages in an amount equivalent to the award of back pay if there is a willful violation, front pay for loss of future earnings, equitable relief such as reinstatement or promotion, and attorney fees and costs. Punitive damages are not available. The allowance for compensatory and punitive damages under the Civil Rights Act of 1991 did not apply to the Age Discrimination In Employment Act.

1. 29 U.S.C. § 621 et seq.
   
   
2. 29 U.S.C. § 623.
   
   
3. 29 U.S.C. § 623(e).
   
   
4. 29 U.S.C. § 623(f).
   
   
5. 29 U.S.C. § 631(c)(1).
   
   
6. 29 U.S.C. § 626.