December DEI – An Overview of The Age Discrimination in Employment Act of 1967
By Laura Kelleher
December 2023
In 1964, Title VII of the Civil Rights Act was enacted, prohibiting discrimination in the workplace on the basis of race, color, gender, religion, or national origin. Three years later, the Johnson Administration enacted The Age Discrimination in Employment Act of 1967 (ADEA), expanding the criteria against which employers are forbidden to discriminate to include age over 40. The ADEA is part of a statutory scheme protecting employees from discrimination in the workplace that eventually also included the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the Family Medical Leave Act.
At the time Congress passed the ADEA, arbitrary age limits were common in employment. Congress sought to protect older workers, particularly from the added challenge of finding work after losing their jobs.
With some exceptions, the ADEA generally applies to employers with 20 or more employees and prohibits discrimination against workers aged 40 or older. 29 USC § 630(b), 631(a). The ADEA makes it unlawful for employers to, on the basis of age: 1) fire or refuse to hire an individual, or to otherwise discriminate against an individual with respect to her compensation, terms, conditions, or privileges of employment; 2) to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities or otherwise adversely affect her status as an employee; or 3) to reduce the wage of any employee. 29 USC § 623(a).
The ADEA prohibits practices like mandatory retirement, advertisements that prefer younger workers (including phrases such as “young,” “recent high school graduates,” and “age 25 to 30”), and reductions in force (RIFs) targeting older workers. However, ADEA plaintiffs may find it challenging to prove their age discrimination case where the employer can present a legitimate non-discriminatory reason for their decision that is correlated with age.
For example, courts have held it is not unlawful for employers to make discriminatory decisions with factors typically correlated with age, such as pension status, salary, or seniority. Slathar v. Sather Trucking Corp. (8th Cir. 1996) 78 F3d 415, 418. Thus, a RIF designed to remove the highest paid, most expensive employees does not violate the ADEA, though the RIF may well disproportionately impact workers over 40. Similarly, rejecting “overqualified” applicants has been found not to violate the ADEA where the motivation was to avoid hiring employees who “might be frustrated, exhibit low morale and perform poorly,” though the likelihood that an “overqualified” applicant is over 40 is high. Binder v Long Island Lighting Co. (2nd Cir. 1995) 57 F3d 193, 197.
Under the ADEA, employers may discriminate on the basis of age if the discriminatory policy or practice is a “bona fide occupational qualification” (BFOQ) that is “reasonably necessary to the normal operation of the particular business. . .” 29 USC §623(f)(1). Employers asserting the BFOQ defense have the burden of proving: 1) the challenged policy or rule is reasonably necessary to the essence of the employer’s business; and 2) the employer has reasonable cause to believe either: all or substantially all persons over the designated age would be unable to perform the job duties safely and efficiently; or individual testing is impossible or “highly impractical for the employer.” Western Air Lines, Inc. v. Criswell (1985) 472 US 400, 422-423.
In practice, Courts rarely uphold a BFOQ defense. For example, in Western Air Lines, Inc. v. Criswell, the employer unsuccessfully showed that its mandatory retirement policy for flight engineers over 60 was a BFOQ because Western Air Lines relied upon individualized testing in similar circumstances, and other businesses in the same industry did not rely upon the same mandatory retirement policy. Id. at 422-423. The Court held that the BFOQ standard under the ADEA was one of “reasonable necessity” and not of “reasonableness,” thus the employer must establish more than a rational basis in fact for believing persons of a certain age cannot perform their jobs safely. Id. at 414.
Overall, employees over 40 should be wary of prospective employers who require them to disclose their age and document statements and policies that target their age. Employers should be careful that their business decisions can be reasonably separated from age and avoid arbitrary age limitations in the workplace. Doing so can help achieve the ADEA’s purpose of “promot[ing] employment for older persons based on their ability rather than age.” 29 USC § 621(b).
Laura Kelleher is an attorney at Swan Employment Law. Her practice includes representing workers to hold employers accountable for discrimination, retaliation, harassment, and wrongful termination. Kelleher has devoted her legal career to advocating for employees. At the University of San Francisco School of Law, Kelleher achieved a CALI Award for Academic Excellence in Employment Law. Kelleher is also a graduate of UC Davis, where she was a champion rower. In her spare time, Kelleher enjoys distance running and has run ten marathons. You can reach her at
laura@swanemploymentlaw.com.
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