29 U.S.C. § 621 et seq.
ADEA: age discrimination, but-for causation, and no pain-and-suffering damages
A federal claim in United States district courts · Last verified August 26, 2026
The age discrimination statute looks like the race and sex discrimination statute and behaves like the wage-and-hour statute. That hybrid is the source of nearly everything people get wrong about it.
Two consequences matter most. Age must be the but-for cause — there is no motivating-factor route, which is a harder standard than the one governing race or sex. And there are no pain-and-suffering damages and no punitive damages, because the remedies came from the wage statute rather than the discrimination statute.
What the claim is
An employer took an adverse action against you because of your age, and you are 40 or older.
Common patterns: a layoff that removes the oldest workers, a reorganisation that replaces experienced staff with cheaper juniors, a refusal to hire someone described as overqualified, or pressure to retire. Harassment based on age and retaliation for complaining are also covered.
The statute protects only the older side. Discriminating in favour of an older worker over a younger one is not actionable.
Where the right comes from
An express prohibition:
to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual's age;
with a separate section creating the private right of action. Federal employees proceed under their own provision, and it works differently — see below.
What a plaintiff has to prove
The elements track the ordinary discrimination pattern: protected age group, qualified, adverse action, and circumstances supporting an inference of age discrimination.
Causation is where this claim diverges, and it splits by sector.
Private, state, and local employees: age must be the but-for cause of the adverse action. In Gross v. FBL Financial Services the Court held the mixed-motive framework available under the race and sex statute does not apply here. Showing age was one factor among several is not enough.
Federal employees: a lower standard. In Babb v. Wilkie the Court held the federal-sector provision requires personnel actions to be "made free from any discrimination based on age," so liability attaches if age tainted the decision-making process at all. But-for causation is still required for the remedy — reinstatement or back pay — not for liability or for injunctive and declaratory relief.
Burden-shifting is a merits device, not a pleading requirement.
How long you have to file
Charge deadlines match the discrimination statute: 180 days from the unlawful act, extended to 300 days where the state has its own fair employment agency.
The suit mechanics differ, and this is the part that trips people. After filing the charge you must wait 60 days before suing — but you do not need a right-to-sue letter to proceed. Once the EEOC terminates its proceedings and sends notice, you have 90 days to file.
Accrual runs from the discrete act. The Lilly Ledbetter Fair Pay Act applies to age-based pay claims, so each discriminatory paycheck restarts the clock.
Federal-sector claimants have a separate route entirely: they may bypass the EEOC by giving it 30 days' notice of intent to sue, within 180 days of the act.
What has to happen before you file
An EEOC charge, then a 60-day wait.
Character of the requirement: a non-jurisdictional claim-processing rule, subject to waiver and forfeiture — the same classification the Supreme Court gave the parallel charge requirement in Fort Bend County v. Davis. Courts have carried that reasoning across, though a plaintiff should not rely on an employer failing to raise the defense.
Who can be sued — and who cannot
Employers with 20 or more employees. Note the threshold: it is 20, not the 15 that governs the race and sex statute and the disability statute. A worker at an 18-person company has no federal age claim and may well have a state one.
Not individual supervisors. Liability attaches to the employer.
State employers cannot be sued for damages. In Kimel v. Florida Board of Regents the Court held Congress did not validly abrogate state sovereign immunity for this statute. Prospective injunctive relief against state officials remains available. This is the same structural bar that applies to disability discrimination in employment, and it catches state workers repeatedly.
Common defenses
Reasonable factors other than age — the statute's own defense, and a broad one. A layoff driven by salary cost, or by a factor that correlates with age without being age, can survive.
Bona fide occupational qualification, narrow and mostly limited to safety-sensitive roles.
Bona fide seniority system or a bona fide employee benefit plan.
A legitimate, non-discriminatory reason, then pretext.
No but-for causation — the Gross defense, and the most effective one.
Sovereign immunity for state employers.
What the claim pays
Back pay, plus liquidated damages equal to the back pay — a doubling — but only for a willful violation. Willful means the employer knew its conduct violated the statute or showed reckless disregard for whether it did. That standard comes from Trans World Airlines v. Thurston and Hazen Paper Co. v. Biggins.
The doubling works this way because the statute borrows the wage-and-hour enforcement scheme rather than the discrimination one.
No compensatory damages for emotional distress. No punitive damages. Which means the damages caps that limit the race and sex statute are irrelevant here — there is nothing of that kind to cap.
Reinstatement, front pay, and injunctive relief are available. Attorney's fees to a prevailing plaintiff. Jury trial available, again through the wage-statute borrowing.
What people get wrong
"The ADEA gives pain-and-suffering and punitive damages like the race and sex statute." No. Back pay plus liquidated doubling for willful violations, and nothing for emotional harm.
"Age just has to be a factor." No. But-for — unless you are a federal employee.
"I work for the state, so I'll sue for damages." You cannot, after Kimel.
"It covers employers with 15 employees." No. Twenty.
"Being replaced by someone younger proves it." It is evidence, not proof, and the replacement need not be under 40 — what matters is a substantial age difference.
"Reverse age discrimination is covered." No. The statute protects workers 40 and over against age-based disadvantage, not younger workers.
Where it came from
The statute passed in 1967, three years after the main civil rights act, and Congress deliberately built it on the wage-and-hour statute's enforcement scheme rather than the discrimination statute's. That single drafting decision produced the liquidated-damages structure, the jury right, and the absence of emotional-distress damages.
Congress has overridden the Supreme Court here twice. The Older Workers Benefit Protection Act of 1990 reversed a decision that had removed employee benefits from the statute's coverage. The Lilly Ledbetter Fair Pay Act of 2009 reset the accrual rule for age-based pay claims.
It has not overridden Gross. Bills to restore a motivating-factor standard have been introduced repeatedly and none has passed, so the but-for rule remains current law — a point worth checking against the date of anything else you read on this claim.
Common questions
How old do I have to be to bring an age discrimination claim?
Forty. The statute protects workers aged 40 and older, and does not protect younger workers against being disadvantaged in favour of older ones.
Does age have to be the only reason for the decision?
Not the only reason, but the but-for cause — the decision would not have happened without it. Federal employees are held to a lower standard for liability under Babb v. Wilkie.
Can I recover for emotional distress under the ADEA?
No. The statute allows back pay and, for willful violations, liquidated damages equal to the back pay. It provides no compensatory damages for emotional harm and no punitive damages.
How small can an employer be before the ADEA stops applying?
Fewer than 20 employees. That is a higher threshold than the 15 that applies to race, sex, and disability discrimination claims.
Can I sue my state employer for age discrimination damages?
No. The Supreme Court held in Kimel that Congress did not validly abrogate state sovereign immunity. Injunctive relief against state officials remains available, and state law may provide a damages remedy.