Wrongful termination based on age is the illegal dismissal of an employee because he or she is 40 or older. The Age Discrimination in Employment Act (ADEA) is the primary federal law that protects employees from age discrimination. In addition, most states have laws that prohibit age discrimination.

Facts about wrongful termination based on age

The ADEA covers private employers with 20 or more employees, including employment agencies, labor organizations, and federal, state, and local governments. The Equal Employment Opportunity Commission (EEOC) enforces the law and prohibits termination based on age or on opposing any unlawful practice related to ADEA.

ADEA protection may not apply if age is a "bona fide occupational qualification" for the job. This requires an employer to prove the age limit is reasonably necessary for job performance or business operation.

An employer may ask an employee to waive his or her ADEA rights either in the settlement of an ADEA claim or in connection with an incentive-based or other employment termination program. A valid waiver must make clear the specific ADEA rights that are being waived and what is being offered in exchange. The waiver must advise the employee to consult a lawyer before signing and must give the employee 21 days to consider the agreement and 7 days to revoke it. Only written waivers are valid. Other limitations may apply and are listed in the Older Workers Benefit Protection Act.

Filing an age-based wrongful termination complaint

You may file a discrimination charge with the EEOC if you believe you were terminated based on age. You may file by mail or in person, or another person can file on your behalf. A charge must be filed within 180 days from the date of termination, or within 300 days if the charge is also covered by a state anti-discrimination law. For best results, charges should be filed as soon as possible.

Once you have filed charges, the EEOC notifies your employer and starts an investigation. The EEOC may dismiss the charge, attempt to settle it through mediation, or file a lawsuit of its own. If the EEOC decides not to sue, the agency issues a letter giving you the right to file a private lawsuit within 90 days.

You may also file with a state agency if your state has age discrimination laws. Consulting with a lawyer may help you decide where to file. Your lawyer may also advise pursuing a private lawsuit.

If you file a lawsuit, you must first file a charge with the EEOC. You may file a private lawsuit anytime from 60 days after filing with the EEOC to 90 days following the receipt of your letter from the EEOC.

Additional resources:

Equal Employment Opportunity Commission: The Age Discrimination and Employment Act of 1967

Equal Employment Opportunity Commission: Age Discrimination

Employment Law Information Network: Age Discrimination in Employment Act

Related Legal Guides:

How to Tell If Your Employer is Violating the Age Discrimination in Employment Act (ADEA)

Wrongful Termination Law

Wrongful Termination Checklist

Wrongful Termination: Health