What Is the ADEA?
The Age Discrimination in Employment Act (ADEA) of 1967 protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA applies to employers with 20 or more employees, as well as to labor organizations, employment agencies, and the federal government.
For HR professionals studying for the SHRM-CP or SHRM-SCP exam, the ADEA is an important part of the Law and Compliance domain. Questions often focus on the scope of protection, permissible defenses, and the specific rules that apply to waivers and early retirement programs.
The ADEA prohibits discrimination in all aspects of employment, including hiring, firing, pay, job assignments, promotions, training, benefits, and any other term or condition of employment. Unlike Title VII, which covers multiple protected classes, the ADEA focuses exclusively on age.
Key Provisions and Protections
Several important features of the ADEA are commonly tested on the SHRM exam:
- Protected group: Only individuals aged 40 and older are protected. The ADEA does not prohibit favoring older workers over younger ones, even if both are over 40 (as clarified in General Dynamics Land Systems, Inc. v. Cline, 2004).
- Disparate treatment: Intentional discrimination based on age, such as refusing to hire someone because they are "too old," violates the ADEA. In Gross v. FBL Financial Services (2009), the Supreme Court ruled that the plaintiff must prove that age was the "but-for" cause of the adverse action, a higher standard than the mixed-motive framework under Title VII.
- Disparate impact: Employment practices that have a disproportionate effect on older workers may violate the ADEA, though employers can defend such practices by showing they are based on reasonable factors other than age (RFOA).
- Mandatory retirement: The ADEA generally prohibits mandatory retirement ages, with narrow exceptions for bona fide executives or high-level policymakers who are at least 65 years old and entitled to retirement benefits of at least $44,000 per year.
BFOQ Defense and Exceptions
The ADEA allows a Bona Fide Occupational Qualification (BFOQ) defense, meaning age can be a factor in employment decisions when it is reasonably necessary to the normal operation of the business. This defense is interpreted very narrowly. Examples include:
- Mandatory retirement ages for commercial airline pilots (set by the FAA, not the employer).
- Age limits for certain public safety positions (law enforcement officers, firefighters) where physical fitness is essential.
Other recognized defenses include actions taken pursuant to a bona fide seniority system and disciplinary actions based on reasonable factors other than age. The employer bears the burden of proving any defense.
On the SHRM exam, look for scenarios that test whether a BFOQ defense is legitimate or merely a pretext for age discrimination. Remember that customer preference or general assumptions about older workers' abilities are not valid BFOQs.
Waivers and the Older Workers Benefit Protection Act
The Older Workers Benefit Protection Act (OWBPA) of 1990 amended the ADEA to address age discrimination in employee benefits and to establish strict requirements for waivers of ADEA claims. These waiver requirements are frequently tested on the SHRM exam:
- The waiver must be written in a manner calculated to be understood by the average individual.
- The waiver must specifically refer to rights or claims arising under the ADEA.
- The individual must receive consideration (something of value) beyond what they are already entitled to.
- The individual must be advised in writing to consult with an attorney before signing.
- For individual terminations, the employee must be given 21 days to consider the agreement and 7 days to revoke it after signing.
- For group terminations or exit incentive programs, the consideration period extends to 45 days, and the employer must provide specific information about the ages and job titles of those selected and not selected for the program.
A waiver that does not meet all of these requirements is unenforceable. HR professionals must ensure strict compliance when drafting separation agreements for employees over 40.
Start Practicing Today
ADEA and age discrimination topics appear regularly on the SHRM exam. With 134 questions over 4 hours at Prometric or OnVUE, you need to know the OWBPA waiver requirements, BFOQ standards, and the "but-for" causation standard.
Practice with targeted questions at SHRMpractice.com. Take a free diagnostic to identify your strengths and weaknesses, and create your account to start preparing effectively.