America's workforce is aging. And as workers stay on the job longer, they generally move up the compensation ladder, acquiring more benefits and higher salaries. They also become more expensive for employers to keep around. This has led to a problem for many older workers, who increasingly face lay-offs (quaintly known as company downsizing or " right" sizing) and difficulties finding new jobs. Laws now afford some protection to older workers who face discrimination in the workplace--and also help protect their pension rights when they leave.

My employer has just cut the workforce in half, singling out older workers who have higher salaries. Is there any legal protection for us?

Possibly. The federal Age Discrimination in Employment Act (ADEA) provides that workers over the age of 40 cannot be arbitrarily discriminated against because of age in any employment decision. Perhaps the single most important rule under the ADEA is that no worker can be forced to retire.

Under the ADEA, there has to be a valid reason--not related to age--for all employment decisions, especially lay-offs. Examples of valid reasons would be poor job performance by the employee or an employer's economic trouble. If lay-offs have been announced or are in the wind, talk with other affected workers. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, you may have the basis for an ADEA complaint or lawsuit. This is especially likely if the employer has hired younger workers to take the places of workers over 40.

Does the ADEA protect all workers from age discrimination?

Unfortunately not; there are limits on both the employees and the employers who are covered. The ADEA only applies to employees age 40 and older--and to workplaces with 20 or more employees. But unlike several other federal workplace laws, the ADEA covers employees of labor organizations and local, state and federal governments as well as those who work in the private sector.

In addition to workers employed by companies which have fewer than 20 employees, there are several other exceptions to the broad protection of the ADEA:

  • Executives or people " in high policy-making positions" can be forced to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
  • There are special exceptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. If you are in one of these categories, check with your personnel office or benefits plan office for details.
  • The biggest exception to the federal age discrimination law is made when age is an essential part of a particular job--referred to by the legal jargon of a " bona fide occupational qualification" (BFOQ). For example, if an employer who sets age limits on a particular job can prove that the limit is necessary because a worker's ability to adequately perform the particular job does, in fact, diminish after the age limit is reached, it's okay to discriminate.
If I'm not protected by the ADEA is an employer free to discriminate against me because of my age?