Age discrimination occurs when an employer treats an individual less favorably because of their age. Unfortunately, age discrimination is an increasing problem in American workplaces.
Both Michigan and federal law prohibit age discrimination and provide damages for its victims. The application of these laws is complex and you should consult with an attorney experienced in Age Discrimination Law.
In Michigan, the Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination based upon age. This law, MCL 37.2202, states:
An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age.
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. ADEA protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
It is also unlawful for an employer to retaliate against an individual for opposing employment practices that discriminate based on age, for filing an age discrimination charge, or for testifying or participating in any way in an ADEA investigation, proceeding, or litigation.
However, the law does allow an employer to force retirement based on age, in certain job categories, like law enforcement officers, firefighters, and highly paid corporate executives.
The ADEA applies to employers with 20 or more employees, including federal, state, and local governments, employment agencies, and labor organizations.
The ADEA prohibits job notices or advertisements, which include age preferences, limitations, or specifications, unless age clearly is a bona fide occupational qualification (BFOQ), or reasonably necessary to the essence of the business.
Although the ADEA does not specifically prohibit an employer from asking a job applicant’s age or date of birth, these questions are subject to close legal scrutiny because they may discourage older workers from applying for work. Thus, an employer must be able to show that it has a legitimate reason for knowing the age of a job applicant.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA, to specifically prohibit employers from denying benefits to older workers. An employer may reduce benefits based on age, only if its cost of reduced benefits for older workers is the same as the cost of regular benefits for younger workers.
Waivers of ADEA Rights
At an employer’s request, an individual may agree to give up, or waive, rights or claims under the ADEA. To be valid and legally enforceable, a waiver agreement must meet specific standards, including:
- Be in writing and be understandable
- Specifically refer to ADEA rights or claim
- Not waive rights or claims that may arise in the future
- Be in exchange for valuable consideration
- Advise the individual in writing to consult an attorney before signing the waiver; and
- Provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.
The requirements for an ADEA waiver are stricter, if an employer requests it in connection with an exit incentive or early retirement program.
Age Discrimination and Replacement of Higher-Wage Earners
The law does not prohibit an employer from ever replacing workers making higher wages with workers who will make less, based on lower seniority. At the same time, this often involves replacement of older workers with younger ones. An employer who uses wage rates as an excuse, but just wants to get rid of older workers, is violating the law. In an ADEA legal action, the worker must show that it really was age, rather than wages, which motivated the firing of older workers.