Age Discrimination in Layoffs: Know Your Rights Under the ADEA
If you're 40 or older and were laid off, you have specific legal protections. Age discrimination in layoffs is illegal, but it still happens. This guide explains your rights under the Age Discrimination in Employment Act (ADEA) and helps you understand when layoffs may cross the line into discrimination.
Important Disclaimer: This guide provides general information about age discrimination law. It is not legal advice. For specific situations, consult with an employment attorney.
What is the ADEA?
Basic Protections
The Age Discrimination in Employment Act protects workers aged 40 and older from discrimination based on age. This includes:
- Hiring decisions
- Firing and layoffs
- Compensation and benefits
- Promotions and job assignments
- Training opportunities
Who is Covered?
Employers:
- 20 or more employees
- Private employers, unions, employment agencies
- Federal, state, and local governments
Employees:
- 40 years of age or older
- Must have worked for covered employer
Signs of Age Discrimination in Layoffs
Red Flags
While a layoff can be legitimate, watch for these patterns:
Disparate Impact:
- Most laid-off employees are over 40
- Older workers disproportionately affected
- Younger workers retained for similar roles
Suspicious Comments:
- References to being "overqualified"
- Comments about "new energy" or "fresh ideas"
- Statements about needing "digital natives"
- References to retirement or "winding down"
- "We need to reduce labor costs" (when older workers are paid more)
Pattern Evidence:
- Recently hired younger replacements
- Position filled by younger worker after you leave
- Older workers pushed out over time
- Performance suddenly becomes "poor" despite good history
Documentation Changes:
- Negative reviews appearing suddenly
- PIPs (Performance Improvement Plans) for older workers
- Changed job requirements you can't meet
Layoffs vs. Age Discrimination
When Layoffs Are Legitimate
Employers can legitimately lay off older workers when:
- Layoffs are based on objective criteria (seniority, performance)
- Position is genuinely eliminated
- Business reasons are documented and applied consistently
- Selection criteria don't disproportionately impact older workers
When Layoffs May Be Discriminatory
Discrimination may be present when:
- Age appears to be a factor in selection
- Younger workers with same skills retained
- Older workers targeted despite good performance
- Position is filled by younger worker soon after
- Stated reasons don't match reality
The Older Workers Benefit Protection Act (OWBPA)
Special Rules for Severance Agreements
If you're over 40 and asked to sign a severance agreement that releases age discrimination claims, the employer must:
For Individual Terminations:
- Give you at least 21 days to consider the agreement
- Provide 7 days to revoke after signing
- Advise you in writing to consult an attorney
- Write the release in understandable language
For Group Layoffs (2+ employees):
- Give you at least 45 days to consider
- Provide 7 days to revoke after signing
- Disclose job titles and ages of those selected for layoff
- Disclose job titles and ages of those NOT selected
- Explain eligibility factors for the program
- Advise you to consult an attorney
Why This Matters
An age discrimination release that doesn't meet these requirements may be invalid. You may:
- Keep the severance AND pursue a claim
- Have the release voided entirely
- Use improper release as evidence of discrimination
Don't sign quickly. Use your 21/45 days.
Building a Case
Documentation
If you suspect age discrimination:
Preserve Evidence:
- Performance reviews (especially positive ones)
- Emails with age-related comments
- Documentation of your contributions
- Communication about the layoff
- Comparison to younger workers' treatment
Note Patterns:
- Ages of those laid off vs. retained
- Who was hired recently
- Comments made about age
- Changes in treatment over time
Witnesses:
- Colleagues who heard comments
- Others who witnessed discrimination
- HR conversations documented
Types of Evidence
| Evidence Type | Examples |
|---|---|
| Direct | Age-related comments, emails |
| Circumstantial | Patterns, disparate impact |
| Statistical | Layoff demographics |
| Comparative | Treatment vs. younger workers |
Filing a Complaint
EEOC Process
Step 1: File with EEOC
- Must file within 180 days (or 300 days in states with their own agencies)
- File online, by mail, or in person
- EEOC will investigate
Step 2: EEOC Investigation
- EEOC investigates claim
- May attempt mediation
- Issues determination
Step 3: Right to Sue
- If EEOC doesn't resolve, you'll receive "right to sue" letter
- Have 90 days to file lawsuit after receiving letter
State Agencies
Many states have their own age discrimination laws:
- May provide additional protections
- Different filing deadlines
- Can file with state AND federal
What You Can Recover
Potential Damages
If you prove age discrimination:
- Back pay: Lost wages from termination to judgment
- Front pay: Future lost earnings
- Liquidated damages: Double back pay for willful violations
- Attorney's fees and costs
- Equitable relief: Reinstatement, policy changes
Note: Unlike other discrimination laws, the ADEA generally doesn't allow compensatory or punitive damages.
Finding Legal Help
Working with an Attorney
When to Consult:
- Before signing a severance release
- If you suspect age discrimination
- If you have strong evidence
- If you want to understand your options
What to Expect:
- Many offer free consultations
- Contingency arrangements possible
- Some specialize in employment/ADEA
Questions to Ask:
- Experience with age discrimination cases
- Strength of your potential case
- Likely timeline and outcomes
- Fee arrangements
What NOT to Do
Common Mistakes
- Signing a release without using your full 21/45 days
- Not consulting an attorney about the release
- Failing to preserve evidence
- Waiting too long to file (180/300 day deadline)
- Discussing the case on social media
- Badmouthing employer publicly
Prevention and Protection
Before Layoffs Happen
If you're an older worker:
- Keep copies of positive performance reviews
- Document achievements and contributions
- Note any age-related comments
- Understand your company's policies
During the Layoff Process
- Don't sign anything immediately
- Use your 21/45 days to consider
- Consult an employment attorney
- Request the group layoff disclosure information
Action Checklist
If You Suspect Age Discrimination
- [ ] Document the timeline of events
- [ ] Preserve all relevant evidence
- [ ] Note any age-related comments or patterns
- [ ] Request OWBPA disclosure (for group layoffs)
- [ ] Use full 21/45 days before signing anything
- [ ] Consult an employment attorney
- [ ] Don't miss the 180/300 day filing deadline
- [ ] File for unemployment regardless
Related Resources
Key Takeaways
- ADEA protects workers 40+ from age discrimination
- 20+ employees required for coverage
- Look for patterns—disproportionate impact on older workers
- Document age-related comments and treatment differences
- OWBPA requires 21/45 days to consider severance releases
- 7-day revocation period is mandatory
- File EEOC complaint within 180/300 days
- Consult an attorney before signing releases
- Preserve evidence of discrimination
- State laws may provide additional protection
Remember: This guide is informational only. Age discrimination cases are fact-specific and require legal expertise. Consult with an employment attorney about your situation.