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Age Discrimination Act of 1967

The Age Discrimination in Employment Act (ADEA) is somewhat of a hybrid statute, deriving its substantive provisions from Title VII of the Civil Rights Act of 1964 and its procedural provisions from the Fair Labor Standards Act (FLSA). The ADEA prohibits employers, labor organizations, employment agencies, and state and political subdivisions from discriminating in employment decisions on the basis of age. The Act extends its protections to all employees over the age of 40, with no upper age limit on the prohibition. For purposes of the Act, an employer is an individual entity engaged in the industry affecting commerce with 20 or more employees. Thus, typical examples of prohibited conduct include covered employers’ refusal to hire, discharge of, involuntary retirement of, or refusal to train a member of the protected class on the basis of age.

It has been noted that technological changes in the job market and advances in medical science may all contribute to the increasing importance of age discrimination litigation in our society. Accordingly, a plaintiff must prove a prima facie case to support a valid claim:

  • Elements of Plaintiff’s Cause of Action – The must demonstrate that:

1) the employee/job applicant belonged to a group protected by the ADEA;

2) the employee/job applicant qualified for/applied for the job;

3) the employee/job applicant was adversely affected by a decision predicated upon age classification; and

4) the employer proceeded to seek an employee with qualifications similar to those that the plaintiff possessed.

  • Membership in Protected Group – The ADEA prohibits discrimination and employment decisions on the basis of age and, provided the employer falls within the Act, covers all employees over the age of 40. Accordingly, membership in the protected group is infrequently disputed in age discrimination cases.
  • Employee/Applicant Job Qualifications – A plaintiff attempting to establish a prima facie case must demonstrate his or her qualifications for the job, promotion, etc. Conversely, employers will frequently allege that the employment decision was not based on age, but rather on the relative qualifications of the applicants/employees. This element can thus pose difficult problems of proof, and interrogatories are included in this chapter to address the parties’ respective contentions on the qualification issue.
  • Adverse Effect – The ADEA plaintiff must demonstrate causation by showing that he or she was adversely affected by the allegedly discriminatory job decision. Accordingly, interrogatories are included in this chapter to elicit the parties’ contentions and supporting facts pertaining to this issue.
  • Hire/Replacement with Similar Qualifications – The plaintiff must demonstrate that the employer continued to seek an individual with qualifications similar to those of the plaintiff, but this may not be applicable in all situations. For example, reductions in the workforce might be implemented on a discriminatory basis, but in these settings the plaintiff would be unable to demonstrate replacement by an equally qualified individual.

Employer Defenses

As in other legal actions, the employer may defend by demonstrating the absence of a requisite element of the plaintiff’s cause of action. While the employer occasionally tries to demonstrate that no actionable job discrimination took place or that the plaintiff’s particular employment was unaffected by such a decision, the defense in age discrimination cases more often focuses on certain defenses recognized under the statutes and case law interpreting ADEA. Some of these defenses are specifically provided in § 4(f) of the Act. These doctrines insulate the employer from liability where:

  1. age is a bona fide occupational qualification reasonably necessary to the normal operation of the business;
  2. the differentiation is based on reasonable factors other than age;
  3. the decision implements a bona fide seniority system or a bona fide employee benefit plan which are not subterfuges to evade the purposes of the act; or
  4. the challenged discharge or disciplinary action is undertaken against an individual for good cause.


Once the employer introduces evidence sufficient to support a finding of a legitimate non-discriminatory reason for the adverse job decision, the burden shifts to the plaintiff to demonstrate that the employer’s articulated reasons are pre-textual. The ADEA plaintiff may attempt to meet this evidentiary burden either directly by persuading the court that a non-discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.


Under the ADEA, plaintiff may pursue a civil action to recover legal or equitable relief as will effectuate the purposes of the statute. A successful ADEA plaintiff is entitled to back pay and fringe benefits. A back pay award may include all compensatory elements, including lost profit sharing, allowances, insurance benefits, and other components of the employee’s compensation package.  Given the remedial purposes of the ADEA, back pay awards are frequently accompanied by reinstatement orders where the same can reasonably be implemented.

Under certain circumstances, the court awards front pay. Front pay is most appropriate when a reinstatement order is impracticable, particularly because of workplace hostility or the inability to implement a reinstatement order.  Where front pay is otherwise appropriate, the duration will depend upon findings regarding how long the plaintiff would have been employed.

If the violation of the ADEA is willful, the employer may be ordered to pay liquidated damages equal to double the back pay award.  An award for liquidated damages is intended to compensate the claimant for non-pecuniary losses and emotional distress, and other compensatory damages are not recoverable.

Finally, a successful plaintiff in an ADEA case may recover prejudgment interest, costs, and attorneys’ fees.

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