Frequently Asked Questions

Reviewed by Tess Holloway (TH), Editor-in-Chief — Employment Law & Age Discrimination Practice. Updated May 2026.

Who is protected by the ADEA?

The ADEA protects workers age 40 and older employed by covered employers. For private employers, coverage requires at least 20 employees — part-time and temporary workers count toward the threshold if they are on the employer’s payroll for each working day of 20 or more calendar workweeks in the current or preceding year. Federal government employers are covered regardless of size under a separate provision (29 U.S.C. § 633a). State and local government employers are covered by the ADEA. Employment agencies and labor unions serving covered employers are also covered.

The 20-employee threshold is meaningfully lower than Title VII’s 15-employee threshold, which means a narrow band of employers (15–19 employees) is covered by Title VII but not the ADEA. For these employers, state age discrimination laws — many of which cover smaller employers — may provide the primary protection for workers 40 and older.

What is the EEOC filing deadline?

For private-sector ADEA claims, the filing deadline is 180 days from the date of the discriminatory act, or 300 days if the state where the discrimination occurred has a state or local fair employment practices (FEP) agency. Most major states and many localities have FEP agencies, making the 300-day deadline the operative one for most employees in most states.

This deadline is jurisdictional — courts have consistently held that missing the EEOC charge deadline bars the federal ADEA claim. There is no equitable tolling for simply not knowing about the deadline, though tolling may be available in narrow circumstances (the employer concealed the discriminatory basis for the action, or the employee was prevented from filing). Do not assume you have more time than you do — file an EEOC charge as soon as you believe you have been the victim of age discrimination, and well before the deadline.

After receiving a right-to-sue letter from the EEOC, you have 90 days to file in federal court. The ADEA also permits a plaintiff to file suit 60 days after filing an EEOC charge even without a right-to-sue letter, subject to the EEOC’s opportunity to investigate. This 60-day waiting period distinguishes the ADEA from Title VII, which requires either a right-to-sue letter or expiration of a longer EEOC investigation period.

What is the difference between back pay and liquidated damages?

Back pay compensates for the economic harm actually suffered — the wages, salary, and benefits the plaintiff would have received but for the discriminatory act, reduced by mitigation earnings. Back pay is a legal damages remedy that the jury can calculate.

Liquidated damages are an additional award equal to the back pay amount, imposed automatically when the jury finds that the violation was willful. They are not compensation for additional harm — they serve the deterrence function of punitive damages without requiring proof of a separate punitive damages element. Once willfulness is found, the court must impose liquidated damages equal to back pay; the court has no discretion to reduce the amount.

The practical effect of willfulness: a $200,000 back pay award in a willful violation case becomes a $400,000 total award. The willfulness question is therefore one of the most significant issues in ADEA litigation, and employment attorneys structure their case presentation around establishing willfulness through the specific evidence most likely to persuade a jury — age-related comments by decision-makers, statistical patterns, deviation from normal procedures, and prior EEOC charges.

Does the ADEA cover independent contractors?

The ADEA covers “employees” as defined under the FLSA — it does not explicitly cover independent contractors. Whether a particular worker is an employee or an independent contractor is determined by the economic reality test applied under the FLSA, which examines the degree of control the hiring entity exercises, the permanency of the relationship, the worker’s investment in their own equipment and facilities, and whether the work is an integral part of the hiring entity’s business.

Workers who are nominally classified as independent contractors but who, in economic reality, function as employees of the hiring entity — because the entity controls their hours, directs their work, provides their tools, and the relationship is long-term — may qualify as employees for ADEA purposes. Misclassification of employees as independent contractors is a known employment law issue, and courts do not defer to the label the parties assigned to the relationship.

Can I sue my employer directly without going to the EEOC first?

No — the ADEA requires administrative exhaustion for private-sector claims. You must file a charge with the EEOC and then either receive a right-to-sue letter or wait 60 days after filing before bringing a federal court action. Failure to exhaust administrative remedies is a jurisdictional defect that bars the claim in most circuits.

The 60-day waiting period option (filing suit 60 days after the EEOC charge without waiting for a right-to-sue letter) is unique to the ADEA and allows faster access to federal court than Title VII’s exhaustion requirements typically permit. In practice, plaintiffs often wait for the right-to-sue letter or for the EEOC investigation to conclude rather than filing after 60 days, because the EEOC investigation sometimes produces useful evidence or a conciliation settlement.

Federal government employees follow a different process: they must first contact an EEOC counselor within 45 days of the discriminatory act and pursue a different administrative process before federal court access is available. This distinct process for federal employee claims is governed by 29 U.S.C. § 633a rather than the private-sector exhaustion requirements.

Is age discrimination hard to prove?

ADEA claims are challenging because the but-for causation standard — established by the Supreme Court in Gross v. FBL Financial Services, 557 U.S. 167 (2009) — is more demanding than Title VII’s mixed-motive framework. Under Gross, the plaintiff must show that age was the but-for cause of the adverse action: that absent the age discrimination, the adverse action would not have occurred. An employer who had both legitimate and age-related reasons for a decision may be able to defeat an ADEA claim by showing the legitimate reason alone would have produced the same outcome — a defense not available in Title VII mixed-motive cases.

Despite this higher standard, ADEA plaintiffs regularly succeed using circumstantial evidence: statistical patterns showing that workers over 50 or 55 were disproportionately affected by a reduction in force; comparative evidence showing that substantially younger employees with comparable or lesser qualifications were retained; age-related comments by decision-makers (particularly comments close in time to the adverse action or made by the actual decision-maker); and evidence that the employer’s stated justification is pretextual — the performance record does not support it, the procedure deviated from normal practice, or the explanation changed over time.

What if I signed a severance agreement waiving my ADEA rights?

The Older Workers Benefit Protection Act (OWBPA), enacted in 1990, imposes specific requirements on ADEA waivers in severance agreements. A waiver of ADEA rights is not valid unless: it is written in a manner calculated to be understood by the individual or the average individual eligible to participate; it specifically refers to rights or claims arising under the ADEA; it does not waive rights or claims that may arise after the date the waiver is executed; the waiver is in exchange for consideration that is in addition to anything of value to which the individual is already entitled; the individual is advised in writing to consult an attorney before executing the agreement; the individual is given at least 21 days to consider the agreement (45 days if the waiver is requested in connection with an exit incentive or group termination program); and the individual has at least 7 days after signing to revoke the agreement.

For group terminations — where an employer eliminates multiple positions simultaneously — the OWBPA imposes additional disclosure requirements: the employer must inform the terminated employees of the job titles and ages of all individuals in the decisional unit who were and were not selected for the program. This disclosure is designed to allow employees to assess whether age discrimination played a role in who was selected.

An ADEA waiver that does not comply with these requirements is invalid and unenforceable. Employees who signed a defective waiver may still be able to assert ADEA claims notwithstanding the signed agreement.

Return to the calculator, see how ADEA damages work, or read the types of age discrimination.