b'Age DiscriminationWho, What, Why . . . Who does it apply to: The Age Discrimination in Employmentsignificantly than others. For example, if an employer institutes Act (ADEA) applies to virtually all employers with 20 or morea policy that employees who wear reading glasses must be let employeesin20ormorecalendarweeksinthecurrentorgo, the policy itself does not seem discriminatory because it may preceding year. Be careful how you count, though. Businessesaffect older and younger people. That said, 90-some percent of under 20 employees may be covered if they are connectedpeople have to start wearing reading glasses by age 40. This tootherbusinessesbyinterrelatedoperations,sharedbankfacially neutral rule has a disparate impact against workers over accounts, common recordkeeping, overlapping ownership, or40 and may be actionable.centralized control of the human resources function.What if my employee violates without consent: Choose carefully Whoisprotected: Applicantsandemployees40andolder. who you place in charge. Employees placed in positions of Interestingly,theADEAdoesnotcareaboutthose39orauthority with the power to control the circumstances of other younger.Employers are free to prefer employees 40 and olderemployeesarenotpersonallyliable. Theirliabilityisplaced overyoungerworkers. Althoughagediscriminationcanstillwith the employer even if the employee acts without authority.occur between employees over 40, an age difference of lessThe same is true of independent contractors (whether properly than 10 years is usually not considered significant enough tocharacterizedornot)placedinpositionsofauthorityover warrant a remedy. The law also protects U.S. citizens workingemployees.abroad for U.S. controlled companies in most circumstances. And, finally, if you have a contractor working for you who isAre there circumstances where I can exclude older workers: mischaracterized they may be able to bring a claim. (See theThere are some jobs that older workers simply cannot or should Independent Contractor v. Employee section.) not do. This is recognized under the ADEA. If an employer has abonafideoccupationalqualification(BFOQ)thatrequires Who is not protected: (1) True independent contractors, and (2)workers above certain ages to be excluded, it will not violate the business executives over the age of 65 who have spent the lastlaw. To have a BFOQ, the employer must demonstrate a factual two years in a policy making position and are entitled to a non- basis that provides a basis to believe that all or substantially forfeitableannualretirementbenefitmeetingcertaincriteria. allolderpersonsareunabletoperformthejobsafelyand The executive exception is very technical and is not intendedefficiently. Employers must be careful with BFOQs. They are for middle management. See your employment counsel aboutoftenchallengedandrarelyholdupunlessthereisstrong this exception. evidence that all older workers cant do the job.What constitutes a violation: There are two kinds of violations:Common Situations:direct mistreatment and disparate impact. Direct mistreatmentBut I just got here: David just bought all of the assets of Hals isstraightforward.IfanemployeraffirmativelymistreatsanHot Links. To keep the business running smoothly, he bought employeeorprospectiveemployeebecauseofhisorherthe name and hired several of the employees Hal let go at the age by failing to hire, firing, demoting, promoting a youngertime of sale. A few weeks into his new business, David receives person, or any other type of significant slight someone mightan Equal Employment Opportunity Commission (EEOC) charge dream up, it can be actionable as age discrimination. Disparateof age discrimination for things that happened to an employee impact is more subtle. If an employer creates a policy that isDavid hired that used to work for Hal. The employee complains neutral or non-discriminatory on its face, that policy might haveof things that happened back when Hal had the business. Why is aconsequenceofnegativelyimpactingolderworkersmoreDavid involved? There is a concept of successor liability under 39'