Age Discrimination in Hiring: EEOC Filing, Remedies, and State Laws

Age discrimination in hiring occurs when an employer factors an applicant’s age into a hiring decision rather than judging the applicant on qualifications and ability to do the job. Under the federal Age Discrimination in Employment Act, that protection applies once you turn 40, and only at employers with at least 20 employees.¹² The rules are stricter than most applicants expect: some age-conscious decisions are legal, the applicant carries a heavy burden of proof, and the damages available are narrower than in other bias cases.

Who Is Protected and Which Employers Are Covered

The ADEA protects individuals who are at least 40 years old. If you are 39 and lose out to a 25-year-old, the federal statute does not help you, though your state’s law might.¹

Not every workplace is covered. The ADEA applies to private employers with 20 or more employees for each working day in at least 20 calendar weeks of the current or preceding year.² State and local governments are covered regardless of size, and so are employment agencies and labor organizations.³ If you are applying at a company with fewer than 20 employees, federal law will not reach the hiring decision and you will need to look at state or local protections instead.

The law covers the whole hiring pipeline: job advertisements, referrals, screening, interviews, and the final decision. An employer cannot publish a job posting that shows a preference or limitation based on age.³

What Illegal Age Discrimination Looks Like in a Job Search

Blatant “we want someone younger” comments are rare. What shows up in EEOC charges tends to be embedded in ordinary hiring steps.

Job advertisements are often the first problem. Phrases like “recent college graduate,” “digital native,” or “young, energetic team” may discourage older applicants and can violate the ADEA even when the wording was not chosen with age in mind.⁴ The EEOC has singled out “recent college graduates” as language that may deter people over 40 from applying.

Interview questions can cross the line too. Asking about graduation dates, retirement plans, or how many more years the applicant plans to work serves no purpose beyond estimating age. Remarks like “you’d be overqualified” or concerns about “fit with the team” can function as coded age references when the applicant’s qualifications are strong. Interview notes referencing “energy level” or “cultural fit with a young team” can also reveal age-based intent.⁵

Automated screening tools and AI have added a newer layer. Resume-screening algorithms may filter candidates by graduation year, by years of experience beyond a set range, or by keywords tied to older technologies. Targeted online ads can be delivered only to younger user profiles. The EEOC has confirmed that federal discrimination laws apply to AI-driven hiring tools, and an employer is responsible for the discriminatory effects of its algorithms even if a vendor built them.⁶

Patterns matter. When a company consistently hires younger, less experienced candidates despite a qualified applicant pool that includes older workers, the pattern itself can become evidence of discriminatory intent.

Courts sort these fact patterns into two legal theories. Disparate treatment is intentional: the hiring manager knows the applicant’s age and lets it drive the decision. Disparate impact involves a facially neutral practice, like a physical agility test or a “degree within the last five years” requirement, that disproportionately screens out older applicants. Each theory is proved differently and defended differently.⁵

When Age-Based Hiring Decisions Are Actually Legal

Not every decision that disadvantages an older applicant breaks the law. The ADEA recognizes two exceptions that employers often invoke.

Bona Fide Occupational Qualification

An employer can use age as a criterion when age is “reasonably necessary to the normal operation of the particular business.”⁷ Courts read this narrowly, and the employer must prove the age limit is essential to the job’s core function.⁸ Actors cast to play a character of a specific age and certain safety-sensitive roles with federally mandated age limits are the standard examples.

Reasonable Factors Other Than Age

When a neutral practice has a disparate impact on older applicants, the employer can defend it by showing it was based on reasonable factors other than age. The employer has to show two things: the practice was reasonably designed to achieve a legitimate business purpose, and it was applied in a way that reasonably achieves that purpose in the circumstances.⁹

This defense is available only against disparate-impact claims, not against intentional discrimination. Courts weigh factors like whether the employer assessed the practice’s impact on older workers and whether supervisors were trained to avoid age bias. One argument is off-limits: an employer cannot justify a hiring practice by saying older workers cost more on average.⁹

Why the Burden of Proof Is Higher Than in Other Bias Claims

This is where age discrimination claims diverge from other workplace bias cases, and where most applicants get an unpleasant surprise. Under Title VII, which covers race, sex, and religion, a plaintiff can win by showing the protected trait was one motivating factor. The ADEA does not work that way.

In Gross v. FBL Financial Services (2009), the Supreme Court held that an ADEA plaintiff must prove age was the “but-for” cause of the adverse hiring decision. You have to show the employer would not have made the same decision if age were not in the picture. The burden of persuasion stays with the applicant the entire time and never shifts to the employer, even if you produce evidence that age was one of several motivating factors.¹⁰

In practice, an applicant who can show age “played a role” may still lose if the employer can point to any other legitimate reason. Direct evidence, such as emails, interview notes, or recorded remarks, is the strongest proof. Most cases run on circumstantial evidence instead: a pattern of hiring younger candidates, inconsistent explanations for why you were rejected, or comments that reflect age-based stereotyping.

Filing a Charge With the EEOC

If you believe age influenced a hiring decision, you file a charge of discrimination with the Equal Employment Opportunity Commission. The deadlines are unforgiving.

You generally have 180 calendar days from the date of the discriminatory act. That extends to 300 days if your state has its own age discrimination law and a state agency that enforces it. A local city or county ordinance does not extend the deadline.¹¹ The clock runs from the date of the hiring decision, not from when you found out age was a factor, so investigating on your own before filing is risky.

The ADEA differs from other discrimination statutes on one useful point: you do not need a Notice of Right to Sue before going to court. You can file a lawsuit any time 60 days after your charge, though you must file no later than 90 days after receiving notice that the EEOC has concluded its investigation.¹²

Retaliation is a separate violation. If a company takes adverse action against you because you filed a charge or opposed a practice you believed to be discriminatory, that retaliation itself is unlawful under the ADEA.⁷

What You Can and Cannot Recover

If you win, the remedies are designed to put you where you would have been without the discrimination. The toolkit is smaller than under Title VII or the ADA, and that catches many plaintiffs off guard.

Back pay covers wages and benefits you would have earned from the date of the discriminatory decision through the resolution of the case.
Front pay covers future lost wages when hiring or reinstatement is not feasible, for instance when the working relationship would be too hostile or the position no longer exists.¹³
Hiring or reinstatement is a court order requiring the employer to put you in the position.
Liquidated damages equal to your back pay, effectively doubling it, are available only when the violation was “willful,” meaning the employer knew or showed reckless disregard for whether its conduct broke the law.¹⁴

What is missing is significant: the ADEA does not allow compensatory damages for emotional distress or punitive damages. If age discrimination caused you severe emotional harm, federal law provides no separate damages category for it.¹⁵ You are entitled to a jury trial on factual issues when your case seeks amounts owed for a violation.¹⁴

Where State Law Does More Than Federal Law

The ADEA is a floor, not a ceiling. Many state laws go further in at least one of three ways: protecting workers younger than 40, covering employers with fewer than 20 employees, or allowing compensatory or punitive damages that federal law does not.

Some states start age protection at 18, meaning a 35-year-old passed over for a younger applicant may have a valid state claim even though the ADEA would not apply. Others lower the employer-size threshold to as few as one employee, which matters at small businesses. State filing deadlines vary widely, from 180 days to several years.

If federal law does not reach your situation because of your age, the employer’s size, or the type of remedy you want, check whether your state’s fair employment agency offers another path. Filing with a state agency can also extend your federal deadline to 300 days when the state has its own age discrimination law and enforcement agency.¹¹

1
Office of the Law Revision Counsel. 29 USC 631 – Age Limits
2
Office of the Law Revision Counsel. 29 USC 630 – Definitions
3
Office of the Law Revision Counsel. 29 US Code 623 – Prohibition of Age Discrimination
4
U.S. Equal Employment Opportunity Commission. Prohibited Employment Policies/Practices
5
U.S. Equal Employment Opportunity Commission. Questions and Answers on EEOC Final Rule on Disparate Impact and Reasonable Factors Other Than Age
6
U.S. Equal Employment Opportunity Commission. Employment Discrimination and AI for Workers
7
Office of the Law Revision Counsel. 29 USC 623 – Prohibition of Age Discrimination
8
eCFR. 29 CFR 1625.6 – Bona Fide Occupational Qualifications
9
eCFR. 29 CFR 1625.7 – Differentiations Based on Reasonable Factors Other Than Age
10
U.S. Department of Justice. Gross v. FBL Financial Services, Inc. – Supreme Court Decision
11
U.S. Equal Employment Opportunity Commission. Time Limits for Filing a Charge
12
U.S. Equal Employment Opportunity Commission. Filing a Lawsuit
13
U.S. Equal Employment Opportunity Commission. Front Pay
14
Office of the Law Revision Counsel. 29 USC 626 – Recordkeeping, Investigation, and Enforcement
15
Ninth Circuit District and Bankruptcy Courts. 11. Age Discrimination – Model Jury Instructions