ADEA Checklist and FAQs for Employers

This page turns the Age Discrimination in Employment Act (ADEA) into a short self-review. Deadlines are on the rules and numbers page.

The Forty-Candle Fairness Check

1. Read job ads, postings and recruiter scripts for age-coded words such as "recent graduate" or "young".
2. For each hiring, promotion or pay decision, write down the non-age reason at the time it is made.
3. Before a layoff or buyout, test the selection criteria. Do they fall harder on workers 40 and older, and is there a reasonable factor other than age?
4. Have counsel review every severance release. The ADEA calls for 21 days to consider (45 for a group program), 7 days to revoke, written advice to consult a lawyer and no waiver of future claims. Group programs also need written disclosure of eligibility, time limits, and the job titles and ages of those chosen, plus the ages of others in the same unit who were not.
5. Answer age-related remarks and complaints promptly, and shield the person who complained from retaliation.
6. Line up payroll and HR records: birth dates in payroll files for 3 years, hiring and discharge files for 1 year.
7. Post the EEOC notice where employee notices are kept.
8. Check any retirement-age rule against the narrow executive exception.

Common mistakes

• Job ads or interview comments favoring "recent graduates," "young" or similar age-coded terms.
• Choosing layoffs or buyouts by age, or by a stand-in that hits workers 40 and older with no reasonable non-age factor.
• Releases with less than 21 days, no 7-day revocation or no written advice to consult a lawyer, or that waive future claims.
• Leaving offensive age remarks by supervisors or customers unaddressed.
• Leaving birth dates out of payroll records, or discarding hiring files before 1 year.
• Treating a retirement age as automatic when the executive exception depends on the pension amount.
• Retaliating against an employee who complained about age bias.

When to talk to an attorney

A CPA cannot answer these questions. An attorney can.

• A layoff, buyout or reorganization affecting several workers 40 and older.
• Drafting any severance, release or settlement agreement for a worker 40 and older.
• An age charge from the EEOC or the Illinois Department of Human Rights, or a demand letter.
• Mandatory retirement, or age rules in a benefit plan.
• A claim that an applicant was screened out by an age-linked requirement.

Frequently asked questions