Discrimination Based upon Age

Under the Act, it is illegal for an employer to refuse to hire an applicant or to fire an employee on the basis of his or her age. The Act also makes it illegal for employers to discriminate against workers because of their ages with regard to compensation and conditions and privileges of employment. Employers are not allowed to consider age in their hiring decisions or to advertise age as a requirement of a posted job unless age is a bona fide occupational qualification (BFOQ) that is reasonably necessary.

The BFOQ exception is narrow. The burden is on an employer to prove that the age limit is reasonably necessary to the essence of the business and that either (1) all candidates excluded from the job are disqualified, or that (2) some of the excluded applicants possess a disqualifying trait that cannot be ascertained except by reference to age.

Retirement

Generally, the Act prevents employers from imposing mandatory retirement ages or otherwise discriminate against older workers through pension or benefit plan policies. Employers may, however, require a select number of top-level executives and policymakers to retire at the age of 65, so long as their annual income from retirement benefits will be at least $44,000. State governments may also enforce a mandatory retirement age for firefighters and law enforcement officers. The Act does not prevent employers from offering voluntary early retirement incentive plans.

Enforcement of the Act

Under the Act, persons 40 years of age and older who claim to have been the victims of age discrimination in employment may bring an action against the employer to recover lost wages. An employer may be ordered to provide a job or a promotion to an applicant or employee against whom it discriminated. The Equal Employment Opportunity Commission may also step in and enforce the law on behalf of injured employees or applicants.

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