Age Discrimination Under Federal (ADEA) and Hawaii Law

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The age discrimination in employment act (“adea”) applies to employers who employ 20 or more employees.  The ADEA prohibits: (1) discharging or discriminating against employees who are at least 40 years-old; and (2) retaliating against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

Hawaii law, HRS Chapter 378, also prohibits age discrimination.  Significantly, however, HRS Chapter 378 applies to all employers.  Further, all employees regardless of their age are protected against age discrimination.  Thus, relatively younger individuals (even those less than the age of 40) who are perceived to be less qualified or skilled for an open position, promotion, raise, etc., because of their relatively younger age, and have been harmed by the decision connected to such perception, could have a potential claim against the employer.

Employer Defenses

There are several defenses available to employers in age discrimination cases. An employer can show that age limits are necessary for the safe operation of the business (e.g., airline pilots).  Other valid defenses to an age claim cam be based on reasonable factors other than age including, but not limited to employee tests that can be justified as a "business necessity;" evaluation factors such as quantity or quality of production or educational level, where such factors have a valid relationship to job requirements and are uniformly applied; or physical fitness requirements based on pre-employment or periodic examinations, which are related to standards reasonably necessary for a specific job and are uniformly required.


The EEOC or HCRC process charges of age discrimination in basically the same manner as Title VII charges.  Under the ADEA, however, charging parties are not required to obtain right-to-sue letters before instituting court proceedings against the employer.  Instead, the charging party may initiate a suit against an employer in federal court after a 60-day waiting period following the filing of the charge with the EEOC or HCRC.

Waiver of ADEA Rights

An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program.  However, the ADEA, as amended (under the Older Workers Benefit Protection Act or “OWBPA”), sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid.


Among other requirements, a valid ADEA waiver must:

  1. Be in writing and be understandable
  2. Specifically refer to ADEA rights or claims
  3. Not waive rights or claims that may arise in the future
  4. Be in exchange for valuable consideration beyond what the employee is  entitled to receive
  5. Advise the individual in writing to consult an attorney before signing the waiver
  6. Provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program (affecting a class or group of employees), additional requirements are imposed by the OWBPA.  The employer must provide the departing employees with at least 45 days to consider the release and details regarding those eligible and ineligible for the program.

The employer must include any class, unit or group of individuals covered by the program, eligibility factors, applicable time limits, and job titles and ages of individuals who are both eligible and not eligible for the program.