Age Discrimination

If you are age 40 or older, state and federal laws protect you from age-based discrimination. The Minnesota Human Rights Act (“MHRA”) and federal Age Discrimination in Employment Act of 1967 (“ADEA”) protect older employees (defined as an individuals who are 40 and older) from discrimination. The Older Workers Benefit Protection Act (“OWBPA”) amended the ADEA in 1990 and offers even greater protection for older workers.

ADEA/MHRA Protections for Older Workers

The major components of the ADEA/MHRA include the following:

  • Employers must not discriminate on the basis of age at any stage of the employment process against anyone 40 years of age or older.

  • Employers are prohibited from discriminating based on age in advertisements for available positions, the application process or interviews. Ads may include age limitations only if age is a bona fide occupational qualification (BFOQ) based on business necessity; this is a very narrow exception.

  • Employers must not discriminate against older workers when reducing the size of their staffs.

  • Employers may not force their employees to take early retirement, but they may offer early retirement incentive packages.

  • Workers who take action under the ADEA cannot be retaliated against for filing, testifying about or participating in a claim against an employer.

  • Under the Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA, an employer typically may not reduce or deny benefits for older employees. In certain situations, however, benefits for older workers may be reduced if the reduction renders the cost of benefits for older workers equal to the cost of benefits for younger workers.

Proving Age Discrimination

In order to prove age discrimination, you have to establish a “prima facie” case. To do so, you need to prove three different things: (1) you must be over 40 years old, (2) have suffered an ‘adverse employment action’ (e.g. termination, demotion, refusing to hire, etc.), and (3) show that the adverse action was connected to your age. This could include a direct statement: “We are moving in another direction because you are too old to do the job.” Or it can be more indirect: “We are making room for those with more energy.” Or it may simply be circumstantial, based on how the employer is treating all of its older workers. After you show this, the employer has a chance to respond that its decision was not discriminatory. Then you can rebut that reason as false or pretext.

Waiving ADEA/MHRA Rights

An employee may waive his or her rights under the ADEA/MHRA at the request of an employer in exchange for a severance package or other consideration. The ADEA sets out specific standards that must be met before a waiver of rights can be considered knowing and voluntary. A valid ADEA waiver must:

  • Be in writing

  • Be understandable

  • Specifically refer to the employee’s ADEA rights or claims

  • Not waive any potential future rights or claims

  • Advise the employee to speak with an attorney before signing the waiver

  • Provide the employee at least 21 days to think about the waiver and at least seven days to revoke the wavier after signing it

If your employer asks you to waive your ADEA rights, you should consult a lawyer before you do so.

What to do if You’ve been Discrimination Against

Employees and job applicants have the right to be free from age discrimination in hiring, firing, promotion, training, benefits, compensation and other aspects of the employment relationship. In addition to the federal Age Discrimination in Employment Act, Minnesota and Wisconsin laws also protect employees from age discrimination. If you have been discriminated against because of your age, contact an attorney to discuss your legal claim.