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Wisconsin Federal & State Employment Law Resources

Age Discrimination in Employment Act of 1967 (ADEA)

The Age Discrimination in Employment Act (ADEA) is a federal employment law prohibiting discrimination against applicants and employees based on an individual’s age (over the age of 40).  Individuals under the age of 40 are not protected under this law.

Employers are covered by the Age Discrimination in Employment Act (ADEA) regardless of the number of employees it employs.

ADEA Protections & Provisions

The ADEA makes it unlawful for public or private employers, employment agencies, licensing agencies, and unions to refuse to hire, to fire, or otherwise discriminate against any individual in compensation or the terms or conditions of his/her employment based on the individual’s age, if the individual is over the age of 40.  It further prohibits harassment in the workplace based on an individual’s age.

Recent Age Discrimination in Employment Act cases have changed the burden of proof for individuals claiming age discrimination under the ADEA.  In order to prove his/her case, the individual must prove that age was the only reason for an employer’s adverse action (for example, discipline, suspension, termination).  If the employer can establish that anything else was also a factor, an ADEA case will not be successful, even if the individual’s age was also a factor in the decision.  This is important because it is a variance from the burden of proof for other discrimination cases, such as those brought under Title VII or the Americans with Disabilities Act (ADA), where an individual only need prove that the adverse action was based in part on the protected category (for example, race or disability).

Third-party retaliation is also recognized by the ADEA, so long as the individual engaging in opposition and the person retaliated against are close enough to each other.  As an example, assume and mother and son work for the same employer.  The mother complains to management that she is being discriminated against based on her age.  In response, the employer does not retaliate against her, but rather against her son, by firing him.  In this scenario, both the mother and son would have claims of retaliation under the ADEA.

Finally, an individual under the age of 40 can be the victim of retaliation under the Age Discrimination in Employment Act if s/he was retaliated against for opposing discrimination or harassment of others in the workplace because of their age (over 40).

Remedies Available Under ADEA

If an individual is successful at trial and it is found by a judge or jury that the individual was the victim of unlawful age discrimination, harassment, or retaliation under the Age Discrimination in Employment Act, that individual is entitled to recover his/her back pay (lost wages), attorney fees and costs, and out of pocket expenses (for example the out-of-pocket cost of insurance if benefits were lost).  Reinstatement (getting his/her old job back) is also available.

Compensatory damages (pain and suffering) and punitive damages (monetary punishment levied against the employer for discriminating or retaliating) are available through the ADEA; however, an individual is not entitled to such damages.

Compensatory damages are subject to the following monetary caps, based on the number of employees employed by the defendant-employer:

  • Up to 100 employees: $50,000
  • 101 – 200 employees: $100,000
  • 201 – 500 employees: $200,000
  • 500+ employees: $300,000

Statute of Limitations

Before filing in an ADEA claim in federal court, an individual must start his/her age discrimination, harassment or retaliation case in an administrative agency – the Department of Workforce Development – Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC).  The individual must also first secure a Notice of Right to Sue letter from the EEOC.

From the date that the Notice of Right to Sue is received, an individual has 90 days to file a federal complaint.  Thus, if the Notice is dated December 30th, but you do not receive it until January 2nd, your federal complaint must be filed within 90 days from January 2nd (April 2nd).  If the federal employment complaint is not filed within the 90 days, it is barred and the individual loses his/her claim under the ADEA claim.

Click on the link for the full text of the Age Discrimination in Employment Act (ADEA).

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