Understanding Your Rights: The Age Discrimination in Employment Act and the Older Workers Benefit Protection Act

By: Attorney Chance Sturup

In today’s rapidly evolving job market, understanding your rights as an employee is crucial, especially as you navigate the latter stages of your career. For many older workers, concerns about age discrimination and fair treatment in the workplace can loom large. Fortunately, there are federal laws in place designed to protect workers aged 40 and above: the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA).

The Age Discrimination in Employment Act (ADEA)

The ADEA, enacted in 1967, was a landmark piece of legislation aimed at promoting the employment of older persons based on their ability rather than age. Its primary objective is to protect workers aged 40 and older from age-based discrimination in all aspects of employment, including hiring, firing, promotions, compensation, and job assignments.

One of the key provisions of the ADEA is that it prohibits discrimination in job advertisements, recruitment, and hiring practices. Employers are not allowed to specify age preferences or limitations unless age is a bona fide occupational qualification (BFOQ) for the job. For instance, a job ad seeking a model for a retirement community may specify an age range, but such cases are rare and strictly regulated.

Moreover, the ADEA makes it unlawful for employers to retaliate against employees who file age discrimination complaints or participate in investigations or proceedings related to age discrimination.

The Older Workers Benefit Protection Act (OWBPA)

The OWBPA, passed in 1990 as an amendment to the ADEA, focuses specifically on protecting the rights of older workers regarding employee benefits. It ensures that older workers are not unfairly targeted when it comes to employee benefit plans, such as health insurance, retirement plans, and severance packages.

Under the OWBPA, employers must provide certain protections for older workers when offering severance agreements or early retirement incentives. These protections include:

  1. Knowing and Voluntary Consent: Employers must provide clear and understandable information about any benefits being offered and the rights that the employee is waiving by accepting the agreement. The employee must have at least 21 days to consider the offer and seven days to revoke their acceptance after signing.
  2. Information about Comparable Employees: Employers must provide information about the job titles and ages of employees who are eligible or selected for the program, as well as those who are not.
  3. Equal Access to Benefits: Older workers must be offered benefits that are comparable to those offered to younger workers in similar circumstances.

Your Rights and Responsibilities

As an older worker, it’s essential to be aware of your rights under the ADEA and OWBPA and to take action if you believe those rights have been violated. If you suspect age discrimination or unfair treatment in the workplace, there are steps you can take:

  1. Document Everything: Keep detailed records of any incidents or interactions that you believe may constitute age discrimination. This documentation can be crucial if you decide to file a complaint or take legal action.
  2. Speak Up: If you feel comfortable doing so, consider addressing your concerns directly with your employer or human resources department. Sometimes, issues can be resolved through open communication and mediation.
  3. File a Complaint: If informal measures fail to resolve the situation, you have the right to file a formal complaint with the Equal Employment Opportunity Commission (EEOC) or your state’s fair employment practices agency.
  4. Seek Legal Advice: If you’re unsure about your rights or how to proceed, consider consulting with an experienced employment attorney, like those at Cromer Babb & Porter, who can provide guidance tailored to your situation.

Ultimately, the ADEA and OWBPA provide important protections for older workers in the United States, safeguarding against age discrimination and ensuring fair treatment in the workplace. At Cromer Babb & Porter, we seek to ensure that older workers understand their rights, and we hold employers accountable for their responsibilities to older workers under these laws.

The Pregnant Workers Fairness Act Strengthens Protection for Pregnant Employees

By: Attorney Beth Bowen

The Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.[1] Covered employers” include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.

How does the PWFA add to the protections already in place?

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits pregnancy discrimination, meaning that an employer cannot treat an employee in a disparate manner based on their pregnancy. However, receiving accommodations under Title VII has been difficult for pregnant women because a pregnant woman must show that her employer accommodated a coworker in the same or similar position.

The Americans with Disabilities Actof 1990 (ADA) prohibits discrimination based on a disability, including pregnancy-related disabilities like gestational diabetes. However, pregnancy is not a disability under the ADA, and many pregnancy-related symptoms and conditions are not covered.

The House Committee on Education and Labor found the protections provided under Title VII and the ADA “are insufficient to guarantee pregnant workers reasonable accommodations.”[2] The Committee wrote, “No worker should have to choose between their health, the health of their pregnancy, and the ability to earn a living.” Id.

The PWFA strengthens federal protections for pregnant employees by requiring covered employers to provide reasonable accommodations for limitations related to pregnancy, childbirth, or related medical conditions. The employer must provide the reasonable accommodation, unless the accommodations would create an “undue hardship,” meaning an unreasonable expense or effort, from the employer. Possible reasonable accommodations include sitting or drinking water while working, providing closer parking, flexible hours, extended break times, and leave, and being excused from strenuous activity or activities with dangerous exposure. Id.

In addition to requiring reasonable accommodations, the PWFA states it is unlawful for an employer to:

  1. Require an employee to accept an accommodation without engaging in an interactive process with the employee regarding accommodations;
  2. Deny employment opportunities based on an employee’s need for reasonable accommodations under the PWFA;
  3. Require an employee to take leave if another reasonable accommodation can be provided;
  4. Retaliate against an employee for exercising their rights under the PWFA; or
  5. Interfere with an employee’s PWFA rights.

Many states, including South Carolina, have state laws prohibiting pregnancy discrimination and mandating reasonable accommodations.[3] The PWFA adds to more protective local, state, and federal laws; it does not replace them. Pregnant workers may be entitled to accommodations under the PWFA, Title VII, the ADA, FMLA, FLSA, and state law.

If a person feels they have been subjected to discrimination, retaliation, or denied accommodations, they should consult with an attorney regarding potential representation immediately, especially because urgent time limitations may affect your claims. 

[1] Pregnant Workers Fairness Act.

[3] See, SC Code § 1-13-80(A)(4); S.C. Code Ann. 1-13-30(T)(2)(b)

CBP Advocates for the Pregnant Workers Fairness Act

By: Attorney Shannon Polvi

Pregnant workers gained additional protections in 2023. The Pregnant Workers Fairness Act (“PWFA”) is a new law that goes into effect on June 27, 2023. The PWFA requires employers to make reasonable accommodations for pregnant and post-partum workers who need them.

It is estimated that three-quarters of women entering the workforce today will be pregnant and employed at some point during their careers. The 44th anniversary of the Pregnancy Discrimination Act recently passed, yet we have a long way to go to protect pregnant and post-partum women in the United States. History has shown that the Pregnancy Discrimination Act was not enough to protect pregnant women. Former and current pregnant and post-partum workers in South Carolina, and around the United States, have been forced out of work because their employer refused to temporarily accommodate their pregnancy needs.

As a woman, I have always felt personally invested in the fight for pregnant workers’ rights. I have represented pregnant women continuously throughout my years of practice. It is a sad fact that mistreatment of pregnant and post-partum women is a reoccurring problem in South Carolina.

There was a coalition of people who brought this PWFA idea to fruition. I was a contributor helping to make this change for women. In collaboration with the National Women’s Law Center, one of my cases was described to Congress as an example of the real-life experiences of pregnant women in the United States. Four of my pregnant and post-partum clients signed onto a public letter to U.S. Senate Majority Leader Chuck Schumer urging him to pass the PWFA. You can read it here: Open Letter: 125+ Mothers Urge Leader Schumer to Pass the Pregnant Workers Fairness Act (New York Times Ad) – A Better Balance.

I am so proud of these women! I am honored to advocate for pregnant and post-partum workers when their rights have been violated.

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Columbia, SC 29211
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