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What It Takes for an Age Discrimination Case

Certain age-related code words can be reason to take action

By R. Scott Oswald and Tom Harrington

A recent Society for Human Resource Management survey found that many employers are unprepared to deal with an aging workforce. As a result, it’s important for older workers to be aware of their rights on the job and to know whether they might have grounds for an age discrimination suit.

The federal Age Discrimination in Employment Act (ADEA) forbids discrimination against job applicants and employees 40 years or older because of their age. ADEA protection, which applies to employers with 20 or more workers, covers hiring, training, benefits, compensation, promotion, firing, layoffs and other terms and privileges of employment.

How to Prove Age Discrimination

To prove unlawful discrimination, an employee must prove that his or her age was a determining factor in the employer’s decision to take an adverse employment action. Courts and the federal Equal Employment Opportunity Commission (EEOC) have found that an employer’s use of age-related code words such as “energetic,” “new blood,” “fresh” and “set in their ways” when describing candidates and employees may be examples of age discrimination.

The ADEA requires that an aggrieved employee show that a favored employee was significantly younger. For example, a 41-year-old claiming discrimination in favor of a 39-year-old would probably not prevail. But the ADEA does not require that a favored employee be under 40. In other words, a 65-year-old can allege that an employer unlawfully discriminated against him or her in favor of a 50-year-old.

The age discrimination law, as amended by the Older Workers Benefit Protection Act of 1990, also requires that severance offers and other requests for an employee to waive rights under ADEA meet certain minimum requirements. Any request that an employee over 40 waive ADEA rights must, among other things:

  • Be in writing and be understandable
  • Not waive rights or claims that may arise in the future
  • Advise the individual in writing to consult an attorney before signing the waiver
  • Provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it

Individuals suffering from unlawful age discrimination under the ADEA must file a charge of discrimination with, and obtain a right to sue from, the EEOC before going to court.

State and Local Protection

Many state and local governments have enacted additional protections for workers, but they differ markedly. So if you think you may have a case, investigate the laws where you live.


In Maryland, for example, state law prohibits discrimination based on age for all ages, not just those over 40. Several counties in Maryland have enacted similar legislation to protect workers; in Howard County, employers with five or more full- or part-time employees cannot discriminate on the basis of age.

Virginia also prohibits age-based discrimination, but does not provide any way for an aggrieved individual to file a lawsuit. Instead, employees must file a complaint with the Division of Human Rights at the Office of the Attorney General, with limited remedies available.

Many laws have an administrative filing requirement that must be exhausted before going to court. Deadlines to file a complaint or lawsuit can be very short — as little as 45 days after notice of an adverse action for federal employees, for example. If you believe you have suffered from age-related or other discrimination, contact an attorney as soon as possible.

Accommodations for Disabilities and Impairments

Additionally, the Americans with Disabilities Act and the Rehabilitation Act prohibit employers from discriminating against an individual because of an actual or perceived disability and can require that an employer provide reasonable accommodations for disabled employees. Under these laws, aging employees who find themselves unable to do some things at work that they once did may have the right to an adjustment in their duties.

And 2008 amendments to the Americans with Disabilities Act say that temporary impairments may qualify for an accommodation. You might be able to get one, for instance, if you need an extended recovery period after a serous surgery, such as joint replacement, and will require light duty.

R. Scott Oswald is managing principal at The Employment Law Group, a Washington, D.C. law firm representing people with legal claims against wrongdoing in the workplace. Read More
Tom Harrington is a principal at The Employment Law Group, a Washington, D.C. law firm representing people with legal claims against wrongdoing in the workplace. Read More
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