Ageism Part 3: What HR Needs to Know

by Michael Haberman on September 8, 2009 · 0 comments

Age was not originally part of the protected catagories as defined by the Civil Rights Act of 1964. It was added with the 1967 passage of the Age Discrimination in Employment Act. And unlike the CRA where coverage starts at 15 employees, its coverage does not start until 20 employees. (This lack of consistency drives HR people nuts.) The law protects workers age 40 or over. It does not provide any protection to workers under 40. It allows employers to favor older workers, even if the “younger” workers are over 40 years of age. This was determined by the Supreme Court in the General Dynamic Land System v. Cline case.

The ADEA prohibits discrimination in all usual areas of employment, but also includes areas not generally considered, such as training and apprenticeship programs and time-off. Harassment based upon age, such as “old” jokes, “old” cartoons, “old” slurs, is also prohibited. So watch the “gray beard” or “old dog” remarks.

There are some areas where age can be a factor. These include:

  • State and local governments may institute a mandatory retirement at age of 55 for firefighters and law enforcement officers.
  • Employers may require a high-ranking employee to retire if:
    • the employee is at least 65
    • the employee has worked for at least the previous 2 years as a bona fide executive or is in a high policy making position, and
    • the employee is entitled to an immediate, nonforfeitable annual retirement of at least $44,000 from the employer.
  • In some cases an employer may reduce benefits paid to older workers if done so in accordance with a bona fide employee benefit plan.

And that leads us to the other law that protects older workers, The Older Worker Benefit Protection Act (OWBPA). This was passed in 1990 and says:

  • Employers must offer older workers benefits that are equal to or, in some cases, cost the employer as much as, the benefits offered to younger workers. The rules for determining whether they are equal depend on the type of benefit offered.
  • A waiver of the right to sue for age discrimination is valid is only if it meets certain standards to ensure the waiver is knowing and voluntary.

There are alot of exceptions to the rules on pensions and other benefit plans, so each HR professional needs to be aware of these, as there are too many for this post.

I do want to cover the waiver issues however, because in  today’s world more HR managers are dealing with them. Waivers have to be knowing and voluntary and the rules for this are:

  1. It is part of a written agreement between the employee and employer.
  2. It is written in language that is understandable to the employee or the average of the group.
  3. Specifically refers to the worker’s rights under the ADEA.
  4. Does not require the employee to waive any rights or claims that may arise after the agreement is signed.
  5. Gives the employee something of value, over and above to what they may already be entitled. This is typically a severance.
  6. The employee must be be advised, in writing, to consult an attorney before signing the agreement.
  7. Must give the employee at least 21 days to consider the agreement, or 45 days in a group termination.
  8. Give the employee at least 7 days after signing to revoke the agreement.
  9. If the waiver is in connection with a group termination the employer must also provide the information on the demographics of the group(s) selected for the program.

So there are the rules. Here are a few comments.

  • By 2010 it is predicted that half the workforce of the US will be over the age of 40.
  • You can tell this law was passed by a group of people who used to think 30 was old. If we were doing this today 40 would not be OLD!
  • As someone well past 40, I still rankle at the idea that someone thinks it takes me an extra 21 days to make a decision and that I have to have help to do it.
  • Age discrimination is one of the fastest growing areas of EEOC suits, so it is going to get worse before it gets better. 
  • The law allows disparate impact lawsuits, so make sure you are checking the impact of your layoffs. They may end up being more expensive than you think.

Finally, when I reached my 40th birthday I celebrated big time because I had finally reached a protected catagory. LOL

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{ 2 comments… read them below or add one }

Anonymous September 8, 2009 at 10:24 am


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Laurie September 10, 2009 at 1:34 am

I can't wait to turn 40.

Yeah, okay, I lied.


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