Staying on the Job

Age Discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) is a federal law that protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, an employer, employment agency, or labor union cannot discriminate against a person because of age 40 or over with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, referral for employment and training. The ADEA prohibits harassment of individuals over 40 because of their age.

The ADEA also prohibits retaliation for an employee complaining about age discrimination.

The ADEA does not require an employer, employment agency, or labor union to give preferential treatment in employment to persons over age 40.

The Arizona Civil Rights Act is a state law that has Arizona similar protections for job candidates and employees age 40 or over. Employers may discipline or fire employees over age 40 for poor job performance, as long as employers have the same job performance requirements and take the same corrective action for employees under age 40.  Employers may also lay off employees age 40 or over as long as the employer does not use age over 40 when determining which employees gets laid off.

When does the ADEA apply?

The ADEA (federal law) applies if an employee is at least forty years old and works for either: a private employer with twenty or more employees, the federal government or any local government.

The U.S. Supreme Court has held that the ADEA cannot be applied to state governments. (Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).

Arizona’s Civil Rights Act law provides more protection than the federal ADEA.  State anti-discrimination law applies to employers with 15 or more employees.  Also, Arizona state employees are protected from age discrimination by the Arizona Civil Rights Act.

When does the ADEA not apply?

Employers can discriminate against job candidates or employees over age 40 if age is a “bona fide occupational qualification.” (“BFOQ”) A bona fide occupational qualification means a job requirement necessary to meet the job requirements.  Mandatory retirements for bus drivers and airplane pilots are BFOQs.

Can my employer force me to retire?

Both the Arizona Civil Rights Act and the ADEA prohibit mandatory retirement based on age. (29 U.S.C. § 623(f)(2); A.R.S. § 41-1463(G)(4)(b)).

There are some limited exceptions to this mandatory retirement prohibition.  For example, employers can have forced retirement due to age for executives and firefighters and employees involved in public safety, such as firefighters and law enforcement officers. (29 U.S.C. § 623(j); A.R.S. § 41-1463(L)).

What is the Older Worker Benefits Protection Act?

The Older Worker Benefit Protection Act allows employees to sign away their right to file a claim of age discrimination.  Employers must provide a notice to the employee they are signing away their right to file a claim of age discrimination.  Employers must also give employees signing away their right to file a claim of age discrimination something of value, usually money, which they are not already entitled to.

The notice the employer gives the employee is often called a “waiver and release.” The notice must include a statement advising the employee to consult a private attorney for advice.

 
What can a person do if they believe they are the victim of age discrimination?

If you feel an employer has used your age over 40 against you when making an employment decision, talk to your employer about how you feel. Check your employer’s Anti-discrimination policy to find out who you should talk to.

If you are not satisfied with your employer’s response or don’t want to talk with your employer about how you feel, you can contact the Equal Employment Opportunity Commission or the Arizona Civil Rights Division.

Equal Employment Opportunity Commission
3300 West Central Avenue, Suite 690
Phoenix, AZ 85012
Telephone:(602) 640-5000 or 1-(800) 669-4000 or TTY 1-(800) 669-6820

Arizona Attorney General Civil Rights Division
1275 W. Washington Street
Phoenix, AZ 85007-2926
Telephone: (602) 542-5025

Arizona Civil Rights Division
400 West Congress, Suite 315
Tucson, AZ 85701-1720
Telephone: (520) 628-6504

Arizona Civil Rights Division
1000 Ainsworth Drive
Suite A-210
Prescott, AZ 86305-1610
Telephone: (928) 778-1265

You can also file a charge of discrimination on-line at this website by going to azag.gov.

Age discrimination claims must be filed with Equal Employment Opportunity Commission or the Arizona Civil Rights Division within 300 calendar days of the last incident of discrimination. However, if the employee worked for an employer with 15 or more employees, but less than 20 employees, the claim must be filed within 180 days of the last incident of discrimination.

Federal Agency Employees and Job Candidates for Federal agencies

The 300 calendar days to file a claim does not apply to employees who work for the U.S. government and job candidates who applies for a job.at federal agencies. The time period to file is much shorter.  Those people must contact a federal agency EEO counselor within 45 days of the last incident of discrimination. The agency that you work in or apply with will provide you with the name and contact information of the EEO counselor.

 

This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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