The Age Discrimination in Employment Act (ADEA) is a federal law which prohibits employment discrimination on the basis of age. It applies to all employers (private, federal, state and local) who employ 20 or more employees. The ADEA protects only employees who are 40 years old or older. In many ways, it is similar to Title VII, but there are several key differences both in the procedures for bringing claims, as well as the damages which can be recovered.
Procedures for Bringing an Age Discrimination Claim Under the ADEA
As described in this article, an ADEA claim begins when the employee files a written charge with the Equal Employment Opportunity Commission (EEOC). This must be done within 180 days of the alleged discriminatory act. In the case of equal pay claims, due to the Lilly Ledbetter Fair Pay Act, this 180 day period renews with each paycheck that reflects the discriminatory pay disparity, regardless of when the decision which created the pay disparity was made.
Unlike Title VII cases, in which a plaintiff must give the EEOC up to 180 days to investigate his or her claim, an ADEA plaintiff must only give the EEOC 60 days. After 60 days, an ADEA plaintiff can immediate file suit, without first needing to obtain a Notice of Right to Sue (as discussed in this article) from the EEOC. Should the EEOC finish its investigation either before the 60 days expires or after (in cases in which the plaintiff chose not to immediately file suit), the plaintiff must file suit within 90 days of receiving the EEOC’s decision (which will be accompanied by a Notice of Right to Sue).
ADEA — The Types of Claims Which Can be Made
The ADEA allows plaintiffs to pursue claims based either on intentional discrimination (“disparate treatment” cases) or on employment policies which are “age neutral” on their face, but which have a significantly greater impact on those age 40 and older (“disparate impact” cases). Disparate treatment cases include claims based on failure to hire, termination, failure to promote, demotion, unequal pay and hostile work environment.
To prevail in a disparate treatment case, a plaintiff must show that “but for” intentional age discrimination, the employer would not have made its adverse employment decision. Unlike Title VII cases, in which the burden of proof as to the employer’s motive may sometimes be shifted to the employer (in “mixed motives” cases), under the ADEA, the plaintiff always bears the burden of proving that discrimination was the “but for” cause for the adverse action.
In Title VII cases, a plaintiff can still be awarded declaratory relief and attorney’s fees (but no other monetary relief or reinstatement) if it shows that discrimination was one of the employer’s motive. Under the ADEA, however, a plaintiff must show that discrimination was the deciding factor in the adverse employment decision in order to obtain any relief.
While an ADEA plaintiff may bring a claim for “disparate impact”, these types of claims are far easier for an employer to defend than those brought under Title VII. Under Title VII, an employer’s policy or practice that disparately impacts a protected group is permitted only if it is “necessary”. Under the ADEA, a practice that disparately impacts workers over forty is permitted as long as it is “reasonable”, a much lower standard for employers to meet.
ADEA — Damages
The damages recoverable under the ADEA, along with how they differ from Title VII damages, are covered in this article.