Function

• Age discrimination laws generally protect workers who are at least 40 years of age. So, you can't hire a 30-year-old applicant instead of a 45-year-old applicant simply because the 30-year-old is younger. Importantly, you also can't hire a 45-year-old instead of a 55-year-old simply based on age.
  
  

Time Frame

• Employers need to know that the ADEA and most similar state laws become effective as soon as there is even a hint of an employment relationship. For example, those laws apply to job advertisements, to application questions and to screening interviews. Of course, this is not to say that employers simply cannot ask an employee's age. But the employer needs to be careful that evaluation criteria does not take into consideration the age of older employees.
  
  

Considerations

• Regardless of the age discrimination laws, employers nearly always have the right to make employment decisions based on legitimate business reasons. There is nothing that prohibits an employer from firing employees who are 40 years or older. But the law does prohibit firing employees because they are old. In other words, age can't be the reason for the employment decision. As long as you have a legitimate business reason for terminating the older employee, you should not be afraid of age discrimination laws.
  
  

Example

• Suppose you are the employer of 25 employees, three of which work in accounting. Your company has recently downsized and you no longer need three accountants; you only need two. One of your accountants is 47 years old, one is 38 years old and one is 26 years old. The 26-year-old is the only accountant with experience that is critical to the needs of one of your clients. The 38-year-old has six more years of experience in auditing than either of the other two accountants. Because you have a legitimate business reason for terminating the 47-year-old, you have the right to do so and you need not fear the ADEA. However, if your only justification for firing the 47-year-old is that she is older, then you'd better reconsider.
  
  

Burden of Proof

• One of the most important rights an employer has with respect to age discrimination is the general presumption that decisions are made for a legitimate business purpose. This is referred to as the burden of proof, and the employee has the burden to prove that the employer discriminated on the basis of age. Generally, if an employee sues you for age discrimination and has no direct evidence of age discrimination, such as a verbal or written statement that the employee was fired because of his or her age, then a court reviewing the claim will dismiss the claim as long as the employer shows there was a legitimate business reason for the decision.