Age Discrimination at Work: Your Rights and Legal Protections After 40

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The Age Discrimination in Employment Act of 1967 makes it illegal for employers to make decisions about hiring, firing, pay, promotions, or any other employment terms based on someone’s age—but only if that person is 40 or older.

When Congress passed the ADEA, lawmakers were responding to a documented crisis: widespread, systematic exclusion of older Americans from the workforce based on stereotypes rather than ability. The law was designed to combat the “arbitrary age limits” that were shutting capable workers out of jobs and creating a national economic inefficiency.

More than half a century later, the ADEA faces new challenges. Court decisions have made it harder for workers to prove discrimination, while evolving workplace dynamics have created subtler forms of age bias.

The Problem Congress Set Out to Solve

The ADEA emerged from a specific historical reality documented in a pivotal 1965 Department of Labor report titled “The Older American Worker: Age Discrimination in Employment.” The findings were stark: approximately half of all private sector job openings were effectively closed to applicants over 55, and a quarter were closed to those over 45.

Congressional Findings: A National Crisis

Congress explicitly found that older workers faced significant disadvantages in keeping their jobs and finding new employment after displacement. This was happening even as the nation experienced rising productivity and affluence, highlighting a paradox where experienced workers were being left behind.

The legislative record shows lawmakers understood this wasn’t merely individual hardship but a matter of national economic importance. Arbitrary age discrimination “burdens commerce and the free flow of goods,” Congress found, because sidelining a vast pool of experienced workers based on stereotypes rather than ability created market inefficiencies that harmed national productivity.

These arbitrary barriers contributed to another severe problem: high incidences of long-term unemployment among older workers. Congress noted that prolonged joblessness led to “deterioration of skill, morale, and employer acceptability,” creating a vicious cycle difficult to break.

The Law’s Three Core Objectives

When enacted, Congress laid out three primary objectives for the ADEA:

1. Promote employment of older individuals based on ability rather than age
2. Prohibit arbitrary age discrimination in the workplace
3. Help employers and workers find solutions to unique problems arising from age’s impact on employment

Modeled largely after Title VII of the Civil Rights Act of 1964, the ADEA passed with relatively little controversy, reflecting broad political consensus that national policy was needed to address these issues.

Who Gets Protection Under the ADEA

The ADEA creates a “protected class” of workers, but the protections aren’t universal. Understanding who qualifies is crucial for applying the law.

The 40-and-Over Rule

The ADEA protects job applicants and employees who are 40 years of age or older. When first passed in 1967, protections extended only to individuals between ages 40 and 65. Congress later expanded coverage, first raising the upper limit to 70 in 1978, then eliminating the cap altogether for most workers in 1986.

This expansion dramatically broadened the law’s scope, ensuring employees are protected from age discrimination for their entire working lives beyond 40. The law’s protections also extend to U.S. citizens employed by American companies to work in foreign countries, with one exception: compliance isn’t required if it would cause the employer to violate foreign laws.

A Common Misconception About “Reverse” Discrimination

The ADEA doesn’t prevent employers from favoring older workers over younger ones. The law is asymmetrical—it doesn’t prohibit choosing a 55-year-old applicant over a 42-year-old, even though both are in the protected class. The law’s purpose is remedying historical bias against older workers, not enforcing perfect age neutrality.

This principle was clarified in the pivotal 1996 Supreme Court case O’Connor v. Consolidated Coin Caterers Corp. A 56-year-old plaintiff was replaced by a 40-year-old. The lower court dismissed the case, reasoning that since the replacement was also in the protected class, there could be no age discrimination claim.

The Supreme Court unanimously reversed this decision, reasoning that the ADEA prohibits discrimination “because of… age,” not because of membership in the 40-and-over group. The real indicator of potential age discrimination is whether the replacement is “substantially younger” than the plaintiff. The Court explained there’s greater inference of age discrimination when a 56-year-old is replaced by a 40-year-old than when a 42-year-old is replaced by a 40-year-old.

Who Must Follow the Law

The ADEA applies to a broad range of employers and organizations across public and private sectors.

Private Employers

The law covers private-sector employers engaged in commerce with 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year. This threshold differs from Title VII of the Civil Rights Act, which applies to employers with 15 or more employees.

Government Employers

The ADEA’s prohibitions extend to all state and local government employers, regardless of size. However, a significant legal limitation exists. In the 2000 Supreme Court case Kimel v. Florida Board of Regents, the Court held that due to state sovereign immunity under the Eleventh Amendment, state employees cannot sue their state employers for monetary damages under the ADEA in federal court.

The Equal Employment Opportunity Commission can still bring lawsuits against states on behalf of employees to seek damages. The ADEA also applies to federal government agencies, providing protections for federal employees and job applicants.

Employment Agencies and Labor Organizations

Employment agencies that regularly procure employees are covered and prohibited from discriminating based on age in referrals and classifications. Labor unions are also covered entities and cannot exclude or expel individuals from membership, or otherwise discriminate against them, because of age.

What Counts as Age Discrimination

The ADEA casts a wide net, prohibiting various actions and practices that disadvantage older workers. These prohibitions fall into several key categories.

Direct Employment Decisions

The central prohibition makes it unlawful for employers “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

When employers take adverse actions motivated by age, it’s known as “disparate treatment.” Prohibited actions include:

Hiring and Recruitment: Refusing to hire applicants because they’re “too old” or using recruitment methods designed to exclude older candidates.

Firing and Layoffs: Terminating older employees to make way for younger ones, or targeting older workers in reductions in force because of their age.

Promotions and Demotions: Denying promotions to qualified older employees in favor of younger ones or demoting older workers based on age-related stereotypes.

Compensation and Benefits: Paying older workers less than younger workers for the same job or providing inferior benefits based on age.

Job Assignments and Training: Giving older employees less desirable assignments or denying access to training opportunities offered to younger colleagues.

The Act also prohibits employers from limiting, segregating, or classifying employees in ways that would deprive individuals of employment opportunities because of age. This prevents creating “career tracks” that steer older workers away from advancement or segregating them into less visible roles.

Discriminatory Job Advertisements

The ADEA’s reach extends to the hiring process’s very beginning: job advertisements. The law makes it unlawful for employers, labor organizations, or employment agencies to “print or publish, or cause to be printed or published, any notice or advertisement… indicating any preference, limitation, specification, or discrimination, based on age.”

Prohibited Language: Job notices shouldn’t contain terms suggesting preference for younger applicants. Phrases such as “age 25 to 35,” “young,” “college student,” or “recent college graduate” are generally viewed as violations because they can deter qualified older individuals from applying.

Permissible Language: The law operates with clear asymmetry. While ads favoring the young are prohibited, ads expressing preference for older individuals are permissible. Employers can legally use phrases like “over age 50,” “retirees welcome,” or “supplement your pension.”

This apparent contradiction is resolved by the ADEA’s fundamental purpose. The Act is a remedial statute designed to counteract specific, well-documented societal bias against older workers and “to promote employment of older persons.” Allowing advertisements that actively encourage older individuals to apply is consistent with the law’s mission to expand, not limit, their employment opportunities.

Age-Based Harassment and Hostile Environments

Age discrimination isn’t limited to discrete decisions like hiring or firing. It can manifest as pervasive harassment creating hostile work environments. The ADEA prohibits harassing people because they’re 40 or older.

To be illegal, conduct must be more than bothersome. The law doesn’t prohibit “simple teasing, offhand comments, or isolated incidents that are not serious.” Rather, harassment becomes unlawful when it’s so frequent or severe that it creates a hostile or offensive work environment, or when it results in adverse employment decisions.

The standard for determining hostile environments is both objective and subjective. Conduct must be severe or pervasive enough that a reasonable person in the employee’s position would find the environment hostile or abusive, and the employee must personally find it so.

Courts consider several factors when evaluating hostile environment claims:

• Frequency of discriminatory conduct
• Severity of the conduct
• Whether conduct is physically threatening or humiliating versus merely offensive
• Whether conduct unreasonably interferes with work performance

Examples of conduct contributing to age-based hostile work environments include repeated mocking or insulting because of age, frequent ageist jokes at the person’s expense, constantly perpetuating negative stereotypes about older workers’ abilities, or ostracizing older employees.

The harasser needn’t be the victim’s supervisor—they can be supervisors in other areas, co-workers, or even non-employees like clients or contractors.

Retaliation: The Law’s Shield

A critical ADEA component—and all U.S. civil rights laws—is its prohibition against retaliation. The law makes it illegal for employers to take adverse action against individuals because they engaged in “protected activity.”

Protected activities include:

• Opposing any practice made unlawful by the ADEA
• Filing age discrimination charges with the EEOC or state agencies
• Testifying, assisting, or participating in investigations, proceedings, or litigation under the ADEA

This anti-retaliation provision is the bedrock of the entire enforcement scheme. Without it, employees would fear reporting discrimination for fear of losing jobs, rendering the law’s core prohibitions meaningless.

Data from the EEOC consistently shows that retaliation is the most frequently alleged basis of discrimination across all statutes, appearing in nearly 60% of all charges filed in Fiscal Year 2023. Once employees raise concerns about potential discrimination, any subsequent negative action by employers is often perceived as punishment, making retaliation claims the strongest and most central part of legal disputes.

When Age-Based Decisions Are Legal

While the ADEA provides broad protections for older workers, it’s not an absolute ban on all employment decisions affecting them. The law recognizes that in certain limited circumstances, age can be a legitimate consideration, and many business decisions are based on valid factors distinct from age.

Bona Fide Occupational Qualification (BFOQ)

The most direct defense to intentional age discrimination claims is the Bona Fide Occupational Qualification. The statute states it’s not unlawful for employers to take actions that would otherwise be prohibited “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.”

This is an extremely narrow exception and difficult for employers to prove. To successfully use the BFOQ defense, employers must satisfy a rigorous two-part test established by the Supreme Court in Western Air Lines, Inc. v. Criswell (1985):

1. The age limit must be reasonably necessary to the essence of the employer’s business
2. The employer must have a factual basis to believe either that all or substantially all individuals over the age limit would be unable to perform job duties safely and efficiently, or that it’s impossible or highly impractical to deal with older employees on an individualized basis

In practice, the BFOQ defense is most commonly accepted in roles where public safety is a primary concern.

Valid Examples: Courts have consistently upheld mandatory retirement ages for airline pilots and interstate bus drivers, accepting the argument that the risk of age-related health events, however small, is too great to justify individualized testing for every employee in safety-sensitive positions. Another accepted use is for authenticity in artistic performances, such as casting a young actor to play a teenage character.

Invalid Examples: Employers cannot claim BFOQs based on customer preference. Airlines cannot argue that customers prefer to be served by younger flight attendants. Similarly, assumptions about older workers’ general capabilities or the higher cost of employing them are not valid BFOQ defenses.

Reasonable Factors Other Than Age (RFOA)

A far more common and complex defense is “Reasonable Factors Other Than Age.” The ADEA allows employment decisions and differentiations “based on reasonable factors other than age.” This defense is the primary tool for employers to rebut claims of disparate impact—claims that facially neutral policies or practices have disproportionately negative effects on older workers.

Unlike the BFOQ, which defends against intentional discrimination, the RFOA defense addresses situations where the employer’s motive wasn’t age, but the outcome still harmed older workers. For example, a company might eliminate all positions with salaries above $150,000 as a cost-cutting measure. This policy is neutral on its face but will likely have disparate impact on older workers, who are more likely to hold senior, higher-paying roles.

The employer bears the full burden of proving the RFOA defense. According to EEOC regulations, a factor is “reasonable” if it’s objectively reasonable from the perspective of a prudent employer mindful of their ADEA responsibilities.

When evaluating RFOA defenses, the EEOC and courts consider:

• The extent to which the factor relates to the employer’s stated business purpose
• Whether the employer defined the factor accurately and applied it fairly to all employees
• Whether supervisors received clear guidance and training on applying the factor while avoiding age-based stereotypes
• The extent to which the employer limited supervisors’ discretion for subjective assessments
• Whether the employer assessed potential adverse impact on older workers
• The degree of harm to older workers and whether the employer took steps to reduce that harm

This defense creates a critical legal battleground. Many legitimate business criteria—such as high salary, seniority, proximity to pension vesting, or lack of experience with latest technology—are often highly correlated with age. The RFOA defense allows employers to make decisions based on these factors, but only if they can prove the decision was genuinely based on that factor and not as pretext for eliminating older workers.

Bona Fide Seniority Systems

The ADEA provides specific safe harbor for decisions made pursuant to “bona fide seniority systems.” It’s not unlawful for employers “to observe the terms of a bona fide seniority system that is not intended to evade the purposes of this chapter.”

For seniority systems to be considered “bona fide,” they must meet several criteria:

• Use employee length of service as the primary criterion for allocating employment opportunities and benefits
• Have essential terms and conditions communicated to all affected employees
• Be applied uniformly to all employees, regardless of age

Systems that purport to be based on seniority but actually give lesser rights or less favorable treatment to employees with longer service may be deemed “subterfuge to evade the purposes” of the Act and wouldn’t be protected.

There’s one absolute limitation: no seniority system may require or permit involuntary retirement of any employee within the protected age group because of their age. This provision was added in a 1978 amendment to clarify that seniority systems cannot be used as tools to force older workers out of jobs.

Executive and High Policymaker Exemption

The ADEA contains a very narrow exemption permitting mandatory retirement of a select group of high-level employees. Employers may compel retirement of employees at age 65 or older if that individual meets two strict conditions:

1. They’ve been employed in a “bona fide executive or high policymaking position” for the two-year period immediately preceding retirement
2. They’re entitled to immediate, non-forfeitable annual retirement benefits from pension, profit-sharing, or similar plans worth at least $44,000

This exception isn’t intended for middle-management employees. It’s limited to a small number of top-level executives whose work involves significant responsibility for company direction and policies. Even if employees fall under this exemption and can be mandatorily retired, they’re still protected from all other forms of age discrimination, such as age-based harassment or unequal pay, prior to retirement.

Special Rules for Benefits and Severance

In 1990, Congress passed the Older Workers Benefit Protection Act (OWBPA), which amended the ADEA to address two critical areas: discrimination in employee benefits and rules for signing waivers of age discrimination claims, typically as part of severance packages.

Equal Benefits Mandate

The OWBPA made clear that the ADEA’s general prohibition against discrimination in “compensation, terms, conditions, or privileges of employment” encompasses all employee benefits, including retirement and pension plans, life insurance, and disability insurance.

Recognizing that the cost of providing certain benefits often increases with employee age, the OWBPA established the “equal benefit or equal cost” principle. This dictates that employers must provide older workers with benefits equal to those offered to younger workers. Employers are permitted to provide lesser benefits to older workers only if the actual amount the employer pays for that reduced benefit equals the amount it pays for the full benefit for younger workers.

This provision was a pragmatic compromise, allowing employers to manage costs without creating disincentives to hire older workers, while preventing them from arbitrarily denying or reducing benefits simply because of employee age.

Waivers of ADEA Rights: Strict Requirements

The most significant and practical OWBPA impact relates to requirements for waivers of ADEA rights. When employees are laid off, employers often offer severance packages in exchange for employees signing releases or waivers, agreeing not to sue the company.

The OWBPA ensures that older workers’ decisions to sign such waivers are “knowing and voluntary” by imposing strict procedural requirements that employers must follow. If these requirements aren’t met, the waiver is legally invalid and cannot be used to block age discrimination lawsuits.

These rules were direct congressional intervention to correct the inherent power imbalance in termination scenarios. Congress recognized that terminated employees are in vulnerable positions and might feel pressured to sign any document to receive needed severance pay.

The following table outlines minimum requirements for valid waivers of ADEA rights under the OWBPA:

How to Enforce Your Rights

Having legal rights under the ADEA is one thing; enforcing them is another. The law establishes a specific procedural framework, with the U.S. Equal Employment Opportunity Commission at its center, for individuals who believe they’ve been victims of age discrimination.

The EEOC’s Central Role

The EEOC is the primary federal agency charged with enforcing the ADEA. This enforcement authority, transferred to the EEOC from the Department of Labor in 1978, gives the agency a central role in the entire process.

The EEOC’s key functions include:

Investigating Charges: When individuals file age discrimination charges, the EEOC investigates allegations. This can involve requesting documents from employers, interviewing witnesses, and conducting fact-finding conferences.

Mediation and Conciliation: The EEOC offers mediation as a voluntary, informal way to resolve disputes. If investigations find reasonable cause to believe discrimination occurred, the agency is required to first attempt ending unlawful practices through informal “conciliation” processes.

Litigation: If conciliation efforts fail, the EEOC has authority to file lawsuits against employers in federal court to enforce the law.

Directed Investigations: The ADEA gives the EEOC proactive enforcement tools through “directed investigations.” This allows the agency to launch investigations into company practices on its own initiative, even if no individual has filed formal charges. While this is powerful authority, it’s used sparingly—from fiscal year 2015 to 2024, the median number of new directed investigations under the ADEA and Equal Pay Act was just 49 per year.

Filing a Charge of Discrimination

For individuals who believe they’ve experienced age discrimination, the first and most critical step is filing a formal “charge of discrimination” with the EEOC. With very few exceptions, filing a charge is mandatory before people can file private lawsuits in court.

The process and timelines are strict:

Filing Deadlines: Individuals must file charges with the EEOC within 180 calendar days from when discrimination took place. This deadline is extended to 300 calendar days if the state or locality where discrimination occurred has its own law prohibiting age discrimination and an agency to enforce it. These deadlines are unforgiving—failing to file on time can permanently bar claims.

Initiating the Process: People can begin the process through the EEOC Public Portal online, by calling the EEOC’s national toll-free number, or by making appointments at one of the EEOC’s 53 field offices.

The Interview and Charge: EEOC staff conduct interviews to gather information about complaints. If allegations are covered by laws the EEOC enforces, staff draft formal charge documents for individuals to review and sign.

EEOC Investigation: Once charges are filed, the EEOC notifies employers and typically asks for formal responses to allegations. The agency then conducts investigations, which must be completed within 180 days of filing.

Resolution or Right-to-Sue: After investigations, the EEOC issues determinations. If the agency finds no violation, or finds violations but decides not to file lawsuits itself, it closes cases and issues individuals “Notice of Right to Sue.” This notice gives individuals 90 days to file their own lawsuits in federal court.

Available Remedies for Victims

If employers are found to have violated the ADEA, courts can order various remedies to make victims whole and prevent future discrimination:

Equitable and Injunctive Relief: Orders forcing employers to stop discriminatory practices. This can also involve “make-whole” relief, such as orders for hiring, promotion, or reinstatement to positions individuals would have been in absent discrimination.

Back Pay: Compensation for lost wages and benefits from the date of discriminatory action up to the date of judgment.

Front Pay: If reinstatement isn’t viable, courts may award front pay—compensation for estimated future lost earnings.

Liquidated Damages: For “willful” violations of the ADEA, victims may be awarded liquidated damages—additional amounts equal to back pay awards (effectively, double damages). Violations are considered “willful” if employers knew their conduct was prohibited or showed reckless disregard for the matter. Liquidated damages aren’t available in suits against the federal government.

Attorneys’ Fees and Court Costs: Prevailing plaintiffs are typically entitled to have their reasonable attorneys’ fees and court costs paid by employers.

Landmark Supreme Court Decisions

The ADEA’s text provides the foundation for age discrimination law, but its practical application has been shaped significantly by Supreme Court decisions. These rulings have clarified, and in some cases narrowed, the path for plaintiffs seeking to prove their cases.

Smith v. City of Jackson (2005): Unintentional Discrimination

For many years, it was an open question whether the ADEA allowed claims based on “disparate impact”—challenging facially neutral employment policies that, while not intended to be discriminatory, have disproportionately negative effects on older workers.

The Supreme Court answered this question in its 2005 decision in Smith v. City of Jackson.

Facts of the Case: The case was brought by older police officers in Jackson, Mississippi. They challenged a new municipal pay plan designed to make salaries more competitive with other jurisdictions. The plan gave proportionately larger percentage raises to officers with five or fewer years of service, most of whom were younger than 40. Older, more senior officers argued this plan had illegal disparate impact on them because of their age.

The Court’s Holding: The Supreme Court held that disparate impact claims are cognizable under the ADEA. The Court’s reasoning relied heavily on the fact that key statutory language in the ADEA is virtually identical to language in Title VII, which the Court had interpreted in its 1971 Griggs v. Duke Power Co. decision to allow disparate impact claims.

The Crucial Limitation: While opening the door for these claims, the Court also significantly narrowed their scope compared to Title VII. It held that employers could defeat disparate impact claims by proving that challenged policies were based on “Reasonable Factor Other Than Age” (RFOA). In the Smith case itself, the Court found that the city’s pay plan was based on an RFOA—its legitimate goal of raising junior officers’ salaries to make them competitive and aid retention.

Gross v. FBL Financial Services (2009): Raising the Bar

Four years after Smith, the Supreme Court issued a highly consequential decision in Gross v. FBL Financial Services, Inc., which fundamentally changed the standard of proof for the most common type of age discrimination claim: disparate treatment.

Facts of the Case: Jack Gross, an employee demoted at age 54, sued his employer, alleging that his age was a “motivating factor” in the decision. This “motivating factor” standard, used in Title VII cases, allows plaintiffs to win by showing that a protected characteristic was one of several factors motivating adverse decisions.

The Court’s Holding: In a sharply divided 5-4 decision, the Supreme Court rejected the “motivating factor” framework for ADEA cases. It held that ADEA plaintiffs alleging disparate treatment must prove that age was the “but-for” cause of challenged employment actions.

The “But-For” Standard: This is a much stricter standard of proof. To meet it, plaintiffs must show that adverse actions would not have occurred but for their age. In other words, age must have been the determinative reason for employers’ decisions, not just one contributing factor. The Court reasoned that unlike Title VII, which Congress had amended in 1991 to explicitly allow “motivating factor” claims, the ADEA had never been similarly amended, and its text—prohibiting discrimination “because of” age—demanded the stricter “but-for” test.

The Combined Impact: A Legal Paradox

The combined effect of Smith and Gross has created a complex and somewhat counterintuitive legal landscape. After 2005, it seemed protections were expanding, as plaintiffs could now challenge policies with unintentional discriminatory effects. However, the Smith ruling also solidified the powerful RFOA defense for employers in those cases.

Then, in 2009, Gross made it significantly more difficult for plaintiffs to win the more common intentional discrimination cases by imposing the high “but-for” causation standard. This has led to a legal paradox where it can sometimes be easier to challenge the broad, unintended consequences of neutral company-wide policies than to prove specific discriminatory intent behind individual firings or demotions.

The following table summarizes the two distinct paths for litigating ADEA claims:

Modern Challenges and Enforcement Gaps

More than half a century after its enactment, the ADEA remains vital but faces new challenges. The modern economy, evolving workplace trends, and court decisions have reshaped the age discrimination landscape.

Persistent Forms of Bias

While blatant ageism signs may be less common than in the 1960s, age discrimination persists in subtler forms:

Discrimination in Hiring: This remains one of the most significant barriers for older workers. Rigorous studies, including correspondence studies where identical resumes are sent out with only age indicators changed, have shown that older applicants are substantially less likely to receive callbacks for interviews than younger counterparts.

Targeted Layoffs: The technology industry has faced numerous lawsuits alleging that large-scale reductions in force systematically replace older, higher-paid workers with younger, less expensive ones, often under the guise of “corporate restructuring” or desire for “fresh perspectives.”

Emerging Work Arrangements: The rise of the “gig economy,” remote work, and other non-traditional employment structures presents new ADEA enforcement challenges. Determining who qualifies as an “employee” versus “independent contractor” can be complex, and ensuring flexible work policies are applied without age bias requires careful attention.

Enforcement Statistics and Trends

Data from the EEOC provides a quantitative look at age discrimination in the U.S. The statistics reveal a widespread problem met with strained enforcement resources.

Charge Volume: The number of discrimination charges filed with the EEOC has been rising. In Fiscal Year 2023, the agency received 81,055 total charges, a 10% increase from the previous year and the highest number since FY 2017. Historically, age discrimination claims have consistently made up a large portion of this caseload, typically between 20-25%.

Litigation and Resolutions: The number of lawsuits the EEOC files can fluctuate dramatically. After filing 144 merit lawsuits in FY 2023, the number fell to 96 in FY 2024. Of those, only seven included claims under the ADEA.

The Enforcement Gap: There’s significant disparity between the number of charges filed and the number of individuals who receive remedies through the EEOC process. The high volume of charges indicates many older workers perceive they’re facing discrimination. However, the relatively low number of lawsuits filed by the agency and low rate of successful resolutions suggest a bottleneck.

This gap may be attributable to several factors, including the difficulty of meeting the “but-for” standard established in Gross, as well as inadequate funding and staffing at the EEOC. This reality places heavy burdens on individual workers to pursue claims through costly and uncertain private litigation.

Legislative Efforts to Strengthen the Law

In response to court decisions that have weakened the ADEA, there’s continuing legislative effort to strengthen the law. The most prominent proposal is the Protecting Older Workers Against Discrimination Act (POWADA).

This bipartisan bill has been introduced in Congress with the primary goal of overturning the Supreme Court’s decision in Gross v. FBL Financial Services, Inc. POWADA would amend the ADEA to explicitly state that an unlawful practice is established when a complaining party demonstrates that age was a “motivating factor” for any employment practice, even if other factors also motivated the practice.

This would lower the burden of proof for plaintiffs from the strict “but-for” standard back to the more manageable “motivating factor” test, aligning the ADEA with the standard used for claims under Title VII. Advocacy groups like AARP have strongly supported POWADA, arguing it’s essential to restore Congress’s original intent and make the ADEA a more effective tool in combating age discrimination.

Intersection with Disability Law

As the American workforce continues aging, there’s growing intersection between age and disability. Older workers are more likely to experience health conditions that may qualify as disabilities under the Americans with Disabilities Act of 1990. This creates complex legal situations where older workers may face discrimination based on stereotypes related to both their age and real or perceived disabilities.

Some experts and advocates have called for closer integration of the ADEA and ADA to provide more seamless and comprehensive protection for this growing demographic. Many legal challenges involve “intersectional” claims, where people allege discrimination based on combinations of protected characteristics, such as older women who believe they were terminated because of both age and gender.

The current legal frameworks can sometimes make these combined claims difficult to litigate, highlighting an area where the law may need to evolve to reflect the complex realities of the modern workplace.

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