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 (Federal Age Discrimination in Employment Act) 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 Federal Age Discrimination in Employment Act is that no worker can be forced to retire.

Under the Federal Age Discrimination in Employment Act, 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 Federal Age Discrimination in Employment Act complaint or lawsuit. This is especially likely if the employer has hired younger workers to take the places of workers over 40.

Does the Federal Age Discrimination in Employment Act protect all workers from age discrimination?

Unfortunately not; there are limits on both the employees and the employers who are covered. The Federal Age Discrimination in Employment Act only applies to employees age 40 and older -- and to workplaces with 20 or more employees. The Federal Age Discrimination in Employment Act applies to federal employees, private sector employees, and labor union employees. It does not, however, apply to state employees, as described below.

There are several other exceptions to the broad protection of the Federal Age Discrimination in Employment Act:

• 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.
  
  
• An exception 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 needs to hire an actor to play the role of a teenager, or a children's clothing store needs models, youthfulness is clearly a necessary part of the job.

If I am a state employee, why am I not protected by the Federal Age Discrimination in Employment Act like other workers?

When Congress passed the Federal Age Discrimination in Employment Act in 1967, it intended for the law to protect state employees as well as federal, private sector and union employees. For 33 years, Congress had its way, and state employees could sue their employers -- the states for which they worked -- for age discrimination just like other workers.

In January of 2000, however, the United States Supreme Court ruled that the Federal Age Discrimination in Employment Act could not protect state employees. In the case of Kimel v. Florida Board of Regents, (No. 98-791, decided January 11, 2000), the Court held that Congress did not have the power to tell the states what to do with regard to age discrimination.

Thus, if you are a state employee, the Federal Age Discrimination in Employment Act no longer protects you from age discrimination. All is not lost, however. Ironically, you may be protected by the laws of the very state that is discriminating against you.

Copyright © 2002 Nolo

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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