Age Discrimination in Employment Act of 1967: Coverage, Rights, Remedies

The Age Discrimination in Employment Act of 1967 makes it illegal for most employers to base hiring, firing, pay, promotion, or other job decisions on the age of a worker who is 40 or older. Codified at 29 U.S.C. §§ 621–634, it applies to private employers with at least 20 employees, to state and local governments, to labor unions, and to employment agencies, and it gives covered workers a path to file a charge with the Equal Employment Opportunity Commission and, if needed, sue in federal court.¹

Who the Law Protects

Protection starts at age 40. If you are 40 or older and an employer treats you unfavorably because of your age, the statute applies. Workers under 40 are not covered by the federal act, though some state laws reach younger workers.²

The protection runs one way. An employer is free to favor an older worker over a younger one even when both are over 40. A 45-year-old passed over for a 60-year-old has no claim under this statute. The framework exists to counter the disadvantages older workers face, not to equalize treatment across every age above 40.²

What matters is your age when the adverse decision happened. You need to be able to show you were 40 or older at that moment.

Which Employers Are Covered

A private employer is covered if it had 20 or more employees on each working day in at least 20 calendar weeks in the current or preceding year. Part-time and seasonal workers on the payroll during those weeks count toward the threshold.³ Smaller employers usually fall outside the federal act, but state laws often set a lower bar, and some reach employers with a single employee.

State and local governments, labor organizations, and employment agencies are covered regardless of size.⁴ Federal workers are protected under a separate section of the same statute but follow different procedures: a federal employee has to give the EEOC at least 30 days’ written notice of intent to sue, and that notice must arrive within 180 days of the alleged discrimination.⁵

What Employers Cannot Do

The act reaches the whole employment relationship. Job postings cannot state age preferences or limits. Hiring cannot rest on age. Once you are on the payroll, pay, assignments, training, promotions, and demotions all have to be free of age-based influence. When companies restructure or lay off, they cannot use the process to target older workers.⁶

Retaliation is separately prohibited. An employer cannot fire, demote, harass, or otherwise punish you for filing a charge, testifying, or opposing conduct you reasonably believe violates the law. That protection stands even if your underlying discrimination claim does not succeed.⁷

Two Types of Discrimination Claims

Disparate treatment is intentional. A manager who says the team needs “younger energy” and then passes over a qualified 55-year-old is treating that worker worse because of age.

Disparate impact is subtler. A policy that says nothing about age can still violate the act if it falls disproportionately on older workers without a legitimate business reason. A new physical fitness test unrelated to actual job duties that screens out most workers over 50 is the kind of neutral rule that can trigger a claim.⁸

Once a worker shows a policy disproportionately harms older employees, the employer has to prove the practice rests on a “reasonable factor other than age.” The EEOC looks at whether the factor actually connects to the stated business purpose, whether it was applied consistently, whether supervisors were told how to avoid age stereotypes, and whether the employer considered the impact on older workers before adopting the policy.⁸

When Age Can Legally Matter

The statute recognizes a handful of exceptions, and the employer has to prove any of them applies.

Bona fide occupational qualification. Age can be a hiring criterion when it is genuinely necessary for the job, usually in public safety contexts like the FAA’s mandatory retirement age for commercial pilots. The exception is narrow, and “reasonably necessary” is a real standard, not a convenience.⁹
Reasonable factors other than age. Decisions can rest on objective criteria like productivity, technical skill, or education even if those criteria happen to correlate with age, as long as the factor is genuinely job-related and not a pretext.⁹
Bona fide seniority systems. A system that rewards longer tenure is permissible if it was not designed to evade the act. No seniority system can force involuntary retirement of a protected worker on account of age.⁹
Employee benefit plans. Employers may follow the terms of a bona fide benefit plan, but the plan cannot justify refusing to hire older workers or forcing them out, and the actual cost or payment for each benefit provided to an older worker must be at least equal to what a younger worker gets.⁹
Discharge for good cause. Poor performance, policy violations, and misconduct are valid grounds for termination at any age.⁹

The Executive Retirement Carve-Out

One narrow provision does allow forced retirement. An employer can compel retirement at age 65 for an employee who held a high-level executive or policymaking position during the two years just before retirement, but only if that person is entitled to an immediate, nonforfeitable annual retirement benefit of at least $44,000 from the employer’s pension or deferred compensation plans.¹⁰ The threshold has not been adjusted for inflation.

The exemption reaches only top leaders with substantial authority over a significant number of employees and a large volume of business. A middle manager does not qualify no matter the job title, and the employer has to prove every element.¹¹

Waivers in Severance Agreements

Employers often ask departing workers to sign severance agreements that release age discrimination claims. The Older Workers Benefit Protection Act, folded into the ADEA, makes such a waiver enforceable only if every one of these conditions is met:¹²

It is written in plain language you can actually understand.
It specifically references the ADEA. A generic release of “all claims” is not enough.
It does not waive claims for anything that happens after you sign.
It offers consideration beyond what you were already owed. Paying out accrued vacation you had coming does not count.
It advises you in writing to consult a lawyer before signing.
It gives you at least 21 days to consider it, or 45 days if the waiver is tied to a group layoff or exit incentive program.¹³
It gives you at least 7 days after signing to revoke, and it does not take effect until that window closes.

Miss any one requirement and the entire waiver is invalid. In group layoffs, the employer also has to disclose the job titles and ages of everyone eligible for the program and everyone in the same job classification who was not selected. Being pressured to sign quickly is itself a warning sign.

Deadlines to File

Missed deadlines kill more age discrimination claims than any other single factor. You generally have 180 days from the date of the discriminatory act to file a charge with the EEOC.¹² The window stretches to 300 days if your state has its own age discrimination law enforced by a state agency. A local ordinance alone does not extend the deadline.

The clock runs from the date the act happened, not from the date you figured out it was discriminatory. If you were passed over for a promotion on March 1, March 1 is day one, no matter when the reason became clear.

Federal employees, again, follow a separate track: at least 30 days’ written notice to the EEOC of intent to sue, filed within 180 days of the alleged discrimination.⁵

Moving From Charge to Lawsuit

The ADEA is different from other discrimination statutes on this point. You do not need a right-to-sue letter. Once 60 days have passed since your charge was filed, you can go directly to federal court.¹⁴ There is a back-end limit, though: if the EEOC finishes and sends you a notice of dismissal or termination, you have 90 days from receiving it to file suit. After that, the right is gone.

How to File With the EEOC

Filing starts through the EEOC Public Portal. You submit an online inquiry and schedule an intake interview. The portal is not a one-click filing tool; the EEOC talks with you first to confirm jurisdiction, then helps you complete the formal Charge of Discrimination (Form 5).¹⁵ If you cannot use the portal, you can contact the nearest EEOC field office directly.

Have the employer’s legal name, address, and an approximate employee count ready to confirm coverage. A clear, chronological account of what happened and when will do more for your charge than legal labels: what was said, who said it, what decision was made, and when.

The EEOC may offer mediation before or during its investigation. Mediation is voluntary, confidential, and free, and any written agreement reached is enforceable like a contract.¹⁶ If it fails or either side declines, the charge continues through investigation with no penalty for having tried.

What You Can Recover

A successful ADEA case can produce reinstatement, back pay, and promotion where appropriate.¹⁷ If you were fired, reinstatement puts you back in the job. When reinstatement is impractical because the working relationship is too damaged, courts sometimes award front pay for future lost earnings instead.

For willful violations, where the employer knew or showed reckless disregard that the conduct was illegal, the court can add liquidated damages equal to the back pay award, effectively doubling the monetary recovery.¹⁷

One limit worth knowing before you file: the ADEA does not allow compensatory damages for emotional distress or punitive damages. Those remedies exist under Title VII and the ADA but not for age claims. A prevailing plaintiff can, however, recover attorney fees, expert witness fees, and court costs, which takes some of the financial risk out of bringing a case.¹⁸

1
Office of the Law Revision Counsel. 29 USC Ch. 14 – Age Discrimination in Employment
2
U.S. Equal Employment Opportunity Commission. Age Discrimination
3
Office of the Law Revision Counsel. 29 USC 630 – Definitions
4
U.S. Equal Employment Opportunity Commission. Fact Sheet: Age Discrimination
5
Office of the Law Revision Counsel. 29 USC 633a – Nondiscrimination on Account of Age in Federal Government Employment
6
U.S. Equal Employment Opportunity Commission. Facts About Age Discrimination
7
U.S. Equal Employment Opportunity Commission. Age Discrimination in Employment Act of 1967
8
U.S. Equal Employment Opportunity Commission. Questions and Answers on EEOC Final Rule on Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act of 1967
9
Office of the Law Revision Counsel. 29 USC 623 – Prohibition of Age Discrimination
10
Office of the Law Revision Counsel. 29 USC 631 – Age Limits
11
eCFR. 29 CFR 1625.12 – Exemption for Bona Fide Executive or High Policymaking Employees
12
Office of the Law Revision Counsel. 29 U.S. Code 626 – Recordkeeping, Investigation, and Enforcement
13
U.S. Equal Employment Opportunity Commission. Q&A-Understanding Waivers of Discrimination Claims in Employee Severance Agreements
14
eCFR. 29 CFR 1626.18 – Filing of Private Lawsuit
15
U.S. Equal Employment Opportunity Commission. How to File a Charge of Employment Discrimination
16
U.S. Equal Employment Opportunity Commission. Mediation
17
Office of the Law Revision Counsel. 29 USC 626 – Recordkeeping, Investigation, and Enforcement
18
U.S. Equal Employment Opportunity Commission. Remedies For Employment Discrimination