When Discrimination on the Basis of Age is Permissible

Mark Shalloway
Jul 9 · 2 min read

Just because an individual is over a certain age, does not meant they are unable to perform jobs and tasks the younger generations can. This is how the Age Discrimination and Employment Act (ADEA) was passed so that persons, aged 40 and above, cannot be discriminated against based on their age — as it’s their qualifications, capabilities, and merit that should be considered. An employer that does discriminate against employees on the basis of age can be punished by law. Actions that violate the ADEA include:

Credit: The Conversation
  • Discrimination against age at any stage of the employment process
  • Tampering or reduction of benefits for older employees
  • Discrimination against older employees during workforce cutbacks
  • Forcing early retirement
  • Retaliation against employees who assert ADEA rights
  • Including age limits for a job (unless the age is a BFOQ)

What is the Only Exception?

The only exception to the set rules against discrimination put forth by ADEA is if the employer can qualify the age as a BFOQ — or a bona fide occupational qualification. It is difficult for this exception to be seen through, however, and can only be applied as a defense on a case-by-case basis. The burden of proof is on the shoulders of the employers to prove that an age limit is necessary to the business, and all individuals excluded from the job involved are in fact disqualified, or that some of the individuals excluded possess a trait that disqualifies them and cannot necessarily be placed on their age.

Credit: HuffPost

It is rare a BFOQ is accepted in a circumstance other than the issue of pubic safety. Employers with the likes of fire departments, police forces, and bussing companies who have been charged with ADEA violations argue that an age requirement on their employees is important due to the mental and physical requirements of the job. As a result, these cases are often found to be valid BFOQ cases.

Another, limited exception is when an ad for a job specifically lists an age prerequisite to apply. This is applicable in the movie industry, where an employer may be looking to hire a 10 year-old for a specific character. Obviously, an actor much older could not pull off acting as a young child. These exceptions are very far and few between, however, as most employers must adhere the ADEA to avoid legal action.

Mark Shalloway

Written by

Mark Shalloway is an elder and special needs care attorney in West Palm Beach, Florida.

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