ADEA, OWBPA & Age Discrimination

The Age Discrimination in Employment Act (ADEA) is a federal law which forbids an employer (with 20 or more employees) from discriminating against employees aged 40 and over on the basis of age.  The Act covers discrimination “in any aspect of employment” including hiring, promotions, pay, benefits, training, job assignment, layoffs and firing.

Employers should be aware that discrimination “in any aspect of employment” is a purposely broad statement meant to provide wide ranging protections.  Examples of areas affected by the act include:

  • Advertisements or help wanted posters
  • Employment applications
  • Occupational qualifications
  • Seniority status

Bona Fide Occupational Age Qualifications

It is also unlawful (1) to harass a worker because he or she is age 40 or older or (2) to retaliate against an employee who opposes work conditions that violate the Act or who files a complaint about such conditions. Help wanted ads may not specify an upper age limit unless age is a rarely occurring “bona fide occupational qualification” (BFOQ) that is reasonably necessary to the routine operation of the company. An important point to note is that this does not work in reverse. Favoring older over younger individuals, for example, is not considered unlawful. This applies even in the case where the younger candidate is over the protected age of 40. You should also keep in mind that an age-based BFOQ is rare and you should not expect to rely on any such defense without first consulting legal counsel.

While the ADEA does not specifically prohibit a company from asking an applicant their age or date of birth, these requests will receive extra scrutiny should a question arise over the legality of a hiring decision.  Was the age or date of birth requested for an allowed reason rather than for the purposes of discrimination based on age of the applicant? This will likely send up a red flag that may result in an age discrimination lawsuit. For these reasons, it is generally not a good idea to include date of birth on job applications or to ask an applicant’s age in a job interview unless age is a bona fide occupational qualification for the position.  You simply want to ask if they are of the age to legally be employed.


As stated above, there are statutory exceptions to the ADEA, but the burden of proof is always on the employer. Age limits are permissible if, and only if, the employer can prove that age is a relevant factor in job qualifications. For example, police and fire departments often set upper limits on age for these physically demanding jobs.

Sometimes an employee may choose to waive their ADEA rights in order to accept an early retirement program or other favorable employment termination offer.  In order to be valid, there must be a written waiver stating that (1) the employee is waiving ADEA claims and rights in exchange for benefits not otherwise available, (2) the employee has had the opportunity to consult with an attorney before signing, (3) the employee has had at least 21 days to review the waiver before signing, and (4) even after signing, the employee may revoke the waiver within seven days.

Older Workers Benefits Protection Act of 1990

In 1990, the Older Workers Benefit Protection Act (OWBPA) was created to amend the ADEA to keep employers from denying benefits to their employees 40 years of age or older.   Because it is typically costlier to provide benefits to older workers than to provide those same benefits to younger workers, employers felt it was financially disadvantageous to hire older workers.  OWBPA allowed employers, in some cases, to reduce benefits based on age, as long as the net cost of providing reduced benefits to the older employees is equal to the cost of providing benefits to the younger employees.

The ADEA, OWBPA, and age discrimination are complex topics. This article is meant as a general overview and does not cover every facet of these acts or their exceptions.  For assistance with compliance with ADEA or OWBPA, or for other inquiries about your obligations as an employer, contact Simon | Paschal PLLC for a consultation.

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