Age discrimination in hiring: what the ADEA requires at every stage

The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer with 20 or more employees, or an employment agency, to refuse to hire someone aged 40 or older because of their age, and to publish a job ad that indicates any age preference. The EEOC's rules name specific phrases that break the law, such as "recent college graduate" and "young", and require employers to keep applications, job ads and test results for at least a year. As of October 2026, those rules are unchanged; several states go further, covering smaller employers and younger workers.

This page follows a hire from the job ad to the records you keep, with the statute or regulation for each step. For the interview questions themselves, see our illegal interview questions guide; for the age claims in AI screening tools, see AI hiring lawsuits.

Who does the ADEA protect, and which employers must follow it?

The protections are "limited to individuals who are at least 40 years of age" (29 U.S.C. 631(a)). An employer is covered if it "has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year" (29 U.S.C. 630(b)). Employment agencies, including staffing firms and recruiters who refer candidates, have their own prohibition: they may not "fail or refuse to refer for employment" anyone, or classify or refer them, on the basis of age (29 U.S.C. 623(b)).

The law protects older workers only. The EEOC's regulation says "favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old" (29 CFR 1625.2). State law can change that.

New York's rule is the one that surprises national employers: a New York employer of any size may not refuse to hire "an individual eighteen years of age or older" because of age, so preferring a 45-year-old over a 25-year-old for being older can be unlawful there even though it is lawful under the federal act.

What does the ADEA say about job ads?

The statute makes it unlawful for an employer or employment agency to publish "any notice or advertisement" relating to employment "indicating any preference, limitation, specification, or discrimination, based on age" (29 U.S.C. 623(e)). The EEOC's rule on help-wanted notices is specific. Ads "may not contain terms and phrases that limit or deter the employment of older individuals," and ads with "terms such as age 25 to 35, young, college student, recent college graduate, boy, girl, or others of a similar nature violate the Act unless one of the statutory exceptions applies" (29 CFR 1625.4(a)).

Newer phrases such as "digital native", "young and energetic team" or "early-career only" are not named in the regulation, but the test it sets is whether a term would "limit or deter" older applicants, and "others of a similar nature" covers phrases that do the same job as the listed ones. Describe the work and the skills instead:

Asking applicants to state their age in an ad is not unlawful in itself, but the EEOC says such requests "will be closely scrutinized to assure that the requests were made for a lawful purpose" (29 CFR 1625.4(b)). The same applies to application forms that ask for date of birth (29 CFR 1625.5), which counts résumés and other written inquiries as "employment applications". A graduation-year field does the same job as a date-of-birth field, so most employers drop both until after an offer. For writing ads that screen on the job's real requirements, see how to write a job description that screens.

Can you cap years of experience or filter by graduation year?

A cap on experience is the clearest example of a rule that screens out older applicants without mentioning age. In Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc), a posting required "3 to 7 years (no more than 7 years) of relevant legal experience." Kleber was 58; the company hired a 29-year-old. The full Seventh Circuit held that the ADEA's disparate impact provision, section 4(a)(2), protects employees but does not give outside job applicants a disparate impact claim, agreeing with the Eleventh Circuit's en banc decision in Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (2016). The Supreme Court declined to review Kleber in October 2019.

That ruling is narrower than it looks:

• It binds federal courts in the Seventh and Eleventh Circuits only. Courts elsewhere are not bound by it, and the applicant age claims in Mobley v. Workday are proceeding in a California federal court.
• It does not touch disparate treatment. If a cap or graduation-year filter is evidence that you wanted younger people, an outside applicant can still sue under section 4(a)(1).
• Internal candidates are employees, so the disparate impact route stays open for them everywhere.
• State laws are separate; California and New York claims are not limited by Kleber.

A minimum ("at least 3 years") tests whether someone can do the job. A maximum mostly tests how long ago they started working. If you use an ATS knock-out filter on years of experience, set a floor, not a ceiling, and check whether any AI screening tool is doing the same thing on your behalf.

Is "overqualified" a proxy for age?

It can be. In Taggart v. Time Inc., 924 F.2d 43 (2d Cir. 1991), the Second Circuit said that denying an older applicant a job because of too much experience, training or education can be "simply to employ a euphemism to mask the real reason for refusal," namely that the employer thinks the applicant is too old. That is one appeals court's view, not a rule that the word is always unlawful, but it is a weak reason to write down. Stronger records say what the job needs and how the candidate measured against it: salary expectations outside the approved range, a stated wish to manage people in a role with no reports, or a gap in a required skill. Ask about those things directly rather than assuming them from a long résumé. Our page on interview questions for overqualified candidates has neutral wording.

What should interviewers avoid saying?

The ADEA bars refusing to hire "because of such individual's age" (29 U.S.C. 623(a)(1)). Questions about age are not banned outright, but comments in notes and messages become evidence of motive. Remarks such as "culture fit with a young team", "how long until you retire?", "set in their ways" or "we need fresh blood" read as age-based motive whatever the intent. Keep notes to evidence about the job's competencies, scored the same way for every candidate; a structured interview makes that easier, and how to reduce bias in interviews covers the scoring side.

Which hiring records does the ADEA require you to keep?

Under 29 CFR 1627.3(b)(1), an employer that makes or uses the following records must keep them "for a period of 1 year from the date of the personnel action to which any records relate":

• job applications, résumés "or any other form of employment inquiry" sent in response to an ad or notice, "including records pertaining to the failure or refusal to hire any individual";
• job orders sent to an employment agency;
• test papers that disclose the results of any employer-administered aptitude or other employment test;
• results of any physical examination considered in a personnel action;
• "any advertisements or notices to the public or to employees relating to job openings".

Interview notes and scorecards about a rejected candidate are records "pertaining to the failure or refusal to hire." If a charge or lawsuit is filed, the records must be kept until it is finally resolved (29 CFR 1627.3(b)(3)). Our guide on how long to keep interview notes sets out the overlapping federal and state periods, and what happens when a rejected candidate files an EEOC charge walks through the hold.

How long does a rejected candidate have to file an age charge?

An ADEA charge must be filed with the EEOC within 180 days of the decision, or 300 days where state law applies (29 U.S.C. 626(d)). The EEOC notes a difference from other charges: for age, the deadline "is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law," not where only a local law applies (EEOC time limits). A lawsuit cannot start until 60 days after the charge is filed. Because the clock starts at the rejection, a one-year record hold is the minimum, not a safe margin.

A checklist for an age-neutral hiring process

• Job ads checked against 29 CFR 1625.4: no "recent graduate", "young", age ranges or similar phrases.
• Experience written as a minimum, never a maximum; ATS knock-out filters checked for ceilings.
• No date of birth or graduation year on application forms before an offer.
• Recruiters and agencies briefed that client age preferences cannot be followed (29 U.S.C. 623(b)).
• Structured questions and scorecards; "overqualified" replaced by the specific job-related reason.
• Applications, ads, job orders, test results and interview notes kept at least one year, longer if a charge arrives.
• State rules checked: smaller employers and under-40 workers may be covered.
• AI screening tools reviewed for age proxies such as graduation dates and experience caps.