Can You Sue for Age Discrimination? ADEA Filing and Remedies

Yes, you can sue for age discrimination if you are 40 or older and work for an employer with at least 20 employees, but you cannot go straight to court. Federal law requires you to file a charge with the U.S. Equal Employment Opportunity Commission first, within a short deadline, and then prove that age was the decisive reason behind what happened to you. Win, and you can recover lost wages and sometimes double that amount; lose on the deadline or the proof standard, and the claim is gone.

Who Can Bring an ADEA Lawsuit

The Age Discrimination in Employment Act protects workers and job applicants who are 40 years of age or older.¹ If you are 39, the federal statute does not cover you, even if your employer treated you unfairly because of your age. Some state laws set the threshold lower.

The law reaches employers with 20 or more employees working each day during at least 20 calendar weeks in the current or previous year.² That covers private companies, state and local governments, and employment agencies. If your employer is smaller than that, your state’s anti-discrimination law may still give you a path.

Federal employees are covered, but through a separate process. You must contact your agency’s EEO counselor within 45 days of the discriminatory act.³ The ADEA also lets federal employees skip the administrative process entirely and go straight to federal court after giving the EEOC notice of intent to sue.

What Kinds of Decisions You Can Sue Over

The ADEA covers nearly every employment decision: hiring, firing, pay, job assignments, promotions, layoffs, training, and benefits. It also prohibits job advertisements with age preferences like “recent graduate” or “young and energetic.”¹ Age-based harassment is actionable when it’s severe or frequent enough to create a hostile work environment or results in a demotion, termination, or other negative employment action. Isolated offhand comments usually don’t meet that threshold.

A facially neutral policy can also violate the law if it disproportionately harms workers over 40, unless the employer shows it was reasonably designed and administered to achieve a legitimate business purpose.⁴

Retaliation is its own violation. If an employer punishes you for filing a complaint, cooperating with an investigation, or informally objecting to a discriminatory practice, you can sue over the retaliation even if the underlying age claim turns out to be weak.⁵

A few narrow exceptions let employers make age-based decisions legally. Age restrictions are allowed where age is “reasonably necessary to the normal operation of the particular business,” such as mandatory retirement for airline pilots and commercial bus drivers.⁵ A separate exemption allows mandatory retirement at age 65 for a very small group of top executives entitled to an annual retirement benefit of at least $44,000.⁶

How Hard It Is to Win: the But-For Standard

Here is where age cases get harder than people expect. Under the ADEA, you must prove that age was the decisive reason for the employer’s action, not just one factor among several. The Supreme Court established this in Gross v. FBL Financial Services, holding that a plaintiff must show “by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.”⁷

This is a tougher standard than in race or sex discrimination cases under Title VII, where a plaintiff only needs to show the protected characteristic was a “motivating factor.” Under the ADEA, if you prove age played a role but can’t prove the outcome would have been different without age bias, you lose. The burden of persuasion stays on you throughout the case and never shifts to the employer.

That reality makes evidence quality decisive. The strongest claims tend to combine several types:

A documented performance history of positive reviews, which undercuts any employer defense that the action was performance-based.
Written communications — emails, Slack messages, texts, or internal memos — referencing age, including casual remarks about wanting “fresh blood” or “new energy.”
A contemporaneous personal log of verbal comments, noting the date, what was said, who said it, and who else was present. Records created close to the events carry more weight than ones reconstructed later.
Comparative evidence showing younger, less qualified employees received better treatment.

No single category is usually enough. Cases that rely entirely on subjective feelings without a paper trail tend to fail.

You Have to File With the EEOC First

Before you can file a lawsuit, you must file a Charge of Discrimination with the EEOC or a state Fair Employment Practices Agency.⁸ A charge filed with a state FEPA is automatically dual-filed with the EEOC, so one filing is enough.

The deadline is the single most time-sensitive step in the process. You have 180 calendar days from the date of the discriminatory act to file.⁹ The window extends to 300 days if your state has its own age discrimination law and an agency that enforces it. For age claims specifically, a local ordinance alone doesn’t trigger the extension — the extending law has to be a state law.⁸ Miss the deadline and you almost certainly forfeit the right to sue.

Charges can be filed through the EEOC’s online Public Portal, which starts with an intake questionnaire and interview, or in person at a field office.¹⁰ The charge needs basic identifying information about you and your employer, a description of the discriminatory actions, and the approximate dates.

When You Can Actually Go to Court

Filing the charge opens two different routes into court.

You can file a lawsuit any time after 60 days have passed since filing the charge, even if the EEOC hasn’t finished investigating.¹¹ Plaintiffs with strong evidence often choose this route rather than wait months for the agency.

Alternatively, you can wait for the EEOC to finish and issue a Notice of Right to Sue. Once that notice arrives, you have 90 days to file your lawsuit.¹¹ This deadline is absolute. Courts routinely dismiss cases filed on day 91, regardless of how strong the underlying claim is. Mark the calendar the day the notice arrives.

What You Can Recover

The remedies in an ADEA case are meaningful but narrower than in other employment discrimination claims.

The core remedy is back pay, covering wages and benefits lost from the date of the discriminatory action through the resolution of the case. A court can also order reinstatement to your former position or promotion to the position you were wrongly denied.¹² When the working relationship has broken down or the position no longer exists, courts may award front pay instead, a lump sum representing future lost earnings.¹³

If the violation was willful, the court can award liquidated damages equal to the back pay, effectively doubling your recovery.¹² “Willful” generally means the employer either knew its conduct violated the ADEA or showed reckless disregard for whether it did.

One important limit: unlike Title VII plaintiffs, ADEA plaintiffs cannot recover compensatory damages for emotional distress or punitive damages.¹⁴ Your financial recovery is tied almost entirely to provable economic losses. A successful plaintiff can also recover attorney’s fees and court costs.

If Your Employer Offers Severance to Waive the Claim

If you’re being offered a severance package in exchange for giving up the right to sue for age discrimination, do not sign without knowing the rules. An ADEA waiver is only enforceable if it is “knowing and voluntary,” and the statute defines what that requires:¹⁵

The agreement must be in plain language understandable to the average person in your position.
It must specifically reference rights under the Age Discrimination in Employment Act. A generic release of “all claims” is not enough.
The employer must offer something of value beyond what you are already owed.
The agreement must advise you in writing to consult an attorney.
You must be given at least 21 days to consider the agreement, extended to 45 days if the waiver is part of a group layoff or exit incentive program.
You must have at least seven days after signing to revoke the agreement.
The agreement cannot waive rights for events that haven’t happened yet.

For group layoffs, the employer must also disclose the job titles and ages of everyone selected for the program and those in the same job classifications who were not. That disclosure exists so you can evaluate whether the layoff disproportionately targeted older workers. If any of these requirements is missing, the waiver may be unenforceable, and your right to sue survives regardless of what you signed. Any material change to the employer’s offer restarts the consideration period from the beginning.

1
U.S. Equal Employment Opportunity Commission. Age Discrimination in Employment Act of 1967
2
Office of the Law Revision Counsel. 29 U.S. Code 630 – Definitions
3
U.S. Equal Employment Opportunity Commission. Federal EEO Complaint Processing Procedures
4
U.S. Equal Employment Opportunity Commission. Questions and Answers on EEOC Final Rule on Disparate Impact and Reasonable Factors Other Than Age
5
Office of the Law Revision Counsel. 29 USC 623 – Prohibition of Age Discrimination
6
eCFR. 29 CFR 1625.12 – Exemption for Bona Fide Executive or High Policymaking Employees
7
Justia. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)
8
U.S. Equal Employment Opportunity Commission. How to File a Charge of Employment Discrimination
9
U.S. Equal Employment Opportunity Commission. Time Limits for Filing a Charge
10
U.S. Equal Employment Opportunity Commission. Filing a Charge of Discrimination
11
eCFR. 29 CFR 1626.18 – Filing of Private Lawsuit
12
Office of the Law Revision Counsel. 29 USC 626 – Recordkeeping, Investigation, and Enforcement
13
U.S. Equal Employment Opportunity Commission. Policy Guidance: A Determination of the Appropriateness of Front Pay as a Remedy Under the ADEA
14
U.S. Equal Employment Opportunity Commission. Remedies for Employment Discrimination
15
Office of the Law Revision Counsel. 29 U.S. Code 626 – Recordkeeping, Investigation, and Enforcement