Is Forced Retirement Legal?

The ADEA prohibited discrimination against a person because of their age of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.  It also prohibits retaliation against an individual who opposes discriminatory employment practices, or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.  These laws are enforced by the Equal Employment Opportunity Commission. (EEOC)   

What Employers and Employees are Covered?

The ADEA applies to employers with twenty or more employers, local, state and federal governments, employment agencies and labor organizations.  The act applies to employees 40 and over.  During the Regan Administration, the ADEA was amended to remove the age cap of 70 relating to the maximum age of employed worker protected by the act.  It was amended in 1991 to prohibit discrimination relating to benefits and retirement.

Can You be Forced to Retire?

Generally, you cannot be required to retire simply because you have reached a certain age unless age is a bona-fide job qualification.  You can waive your rights under the ADEA as part of a severance package or a reduction of a workforce.  There are specific guidelines that must be followed for a waiver of ADEA rights to be valid.  The wavier must be:

• Must be in writing and be understandable.  This means written in plain language, no legalese.
• Must specifically refer to ADEA rights or claims.  A general release will not met ADEA standards.
• May not waive rights or claims that may arise in the future.
• Must be in exchange for valuable consideration.  If you were entitled to certain benefits anyway, and did not receive anything additional in return for signing a waiver, it is not valid under the ADEA.
• Must advise you in writing to consult an attorney before signing the waiver.  While you do not have to consult with an attorney, and may choose not to, you must have been advised in writing to consult an attorney.
• Must provide you with at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. 

Do You Need a Lawyer?

The 1991 amendments to ADEA indicate specifically that if you are considering waiving ADEA rights that legal counsel should be consulted.  It is recognition of the serious nature of your action.  Consult a lawyer if you believe you are being discriminated against because of your age in benefits.  The courts have strict rules about how and when benefits can be waived.  Legal consultation is your best protection if your employer asks you to wave any rights. 

Summary

As a rule, the Age Discrimination in Employment Act (ADEA) prohibits forcing an employee simply because they have reached a certain age.  Age limitations apply on in the limited instances where age is part of the bona fide job requirement.  ADEA protections can be waived as part of a severance page or workforce reduction but specific requirements must be met for the wavier to be valid.  It is important to consult legal counsel if you are being asked to waive your ADEA rights or retire before you are ready.