Age Discrimination in Employment Act

The Age Discrimination in Employment Act (“ADEA”) is designed to protect people age 40 and older from discrimination in the workplace. The ADEA applies to employers, including state and local governments, who have employed at least 20 employees for twenty weeks or more in the preceding twelve-month period. In Pennsylvania, the Pennsylvania Human Relations Act (“PHRA”) prohibits age discrimination in employment against employees age 40 and over as well. It is interpreted and applied similarly to the ADEA, but covers employers with as few as four employees.

Discrimination under the ADEA is any act by an employer that treats a person differently or unfairly based upon his or her age. Such acts include termination, differential treatment in employment terms and conditions (e.g., pay, hours, promotional opportunities), refusal to hire, and refusal/failure to promote. For example, an older employee who makes less money for doing the same job as a much younger co-worker because he/she is denied the opportunity to work overtime, may be able to pursue a claim for age discrimination based upon differential treatment.

As previously noted, the ADEA’s protection also extends to hiring practices. If a person feels that age is the reason he or she is denied or passed over for a job, the ADEA and/or PHRA may offer protection. The person claiming discrimination in this instance should be able to show that he/she was qualified for the job, that someone significantly younger and less qualified was hired instead, and that there is no business justification or other valid reason for the failure to hire.

Under both the ADEA and the PHRA (and under other discrimination statutes as well), it is unlawful for an employer to take adverse action against any employee who complains of discrimination or supports another employee’s discrimination claim. Such action by an employer in response to a discrimination claim gives rise to a claim of retaliation. For example, if an employer fires or demotes an employee after he or she complains of age discrimination, the complaining employee can pursue separate claims of age discrimination and retaliation against the employer.

It should be noted that the law does not provide for any mandatory retirement age, but employers and employees can provide for a mandatory retirement age in an employment agreement, collective bargaining agreement, Partnership agreement or similar arrangement.

An employer seeking to terminate an employee who is protected by the ADEA (i.e., an employee age 40 or over) may offer severance benefits, along with a waiver releasing the employer from any and all claims, including claims of discrimination under the ADEA, if the employee accepts the package. Under the Older Worker Benefits Protection Act (“OWBPA”), any proposed agreement offered to an to an employee age 40 or over in exchange for his or her release of claims must meet certain requirements; any such agreement must:

• be in writing;
• give the employee a minimum of 21 days (45 days if the termination and requested release affect numerous employees) to review and consider the agreement;
• advise the employee to consult an attorney;
• set forth the employee's rights under the ADEA; and
• allow the employee a 7-day period in which to revoke acceptance of the agreement after signing it.

Administrative Agencies

Before bringing a suit for discrimination based on disability, age, race, sex, religion, and/or national origin in federal or state court, one must file a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) and/or its state equivalent, the Pennsylvania Human Relations Commission (PHRC). The EEOC is the agency established by the federal government to investigate and sometimes prosecute discrimination cases; the PHRC is the parallel agency of the Commonwealth of Pennsylvania.

The federal and state discrimination laws contain deadlines by which a person must notify either the EEOC or the PHRC of any act of discrimination in order to preserve and pursue a claim. The PHRA allows claimants 180 days after the discriminatory act to provide notice of a claim, and to complete and file the necessary paperwork. A claimant has 300 days to file a claim with the EEOC in Pennsylvania, under its work sharing arrangement with the PHRC.

The EEOC’s Philadelphia regional office is located at 21 South 5th Street, Suite 400 in Philadelphia, PA 19106-2515. Its telephone number is (215) 440-2600.

The PHRC’s Philadelphia office is located at 711 State Office Building, Broad and Spring Garden Streets in Philadelphia, PA 19130-4088. Its telephone number is (215) 560-2496.