It is unlawful for an employer to discriminate on the basis of age against workers who are at least 40 years old.
Some states provide coverage for broader age groups. Under this law it is illegal to employ help wanted ads with age restrictions such as “25 to 35”, “young” or “college student” or otherwise attempt to hire only individuals in a certain age category. Attempts to achieve a “younger image” for a company through employment decisions is prohibited. Even if both employees are over 40 when a decision is made between them, age cannot be a factor in the action or there will be employer liability.
No worker, except certain executives, can be forced into involuntary retirement at a certain age, and with the removal of the upper protected limit of 70, persons over that age are fully protected also.
The fact that a state may have laws involving ages for employment does not insulate a business from liability. However if the employer can show a bona fide occupational qualification for age related limits, then action can be taken on that basis. Employee pension and benefit plans must treat employees of all ages equally. The fact that a worker is older cannot be a basis for a reduction in benefits when others of different ages are not treated in the same way.
“Downsizing” or “RIF’s” (a reduction in force) cannot be discriminatory based on age, and evidence of a statistical disparity disfavoring older workers on a downsizing can be a basis for an adverse impact finding against the business. This involves a statistical showing that the distribution of terminated persons involved a significantly greater number of older persons than was probable without a discriminatory intent.
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