Age discrimination occurs when an employer treats an employee, or potential employee, differently from other workers who perform the same work. This is based solely on the person’s age, and has nothing to do with their qualifications or fitness for the job.
Proving age discrimination requires proof that the employer intended to discriminate against the employee based solely on their age. However, work performance and the ability to perform certain tasks are also important considerations in age-discrimination cases.
Age discrimination is especially common during the hiring phase of employment. An example of this would be how it can occur when an employer refuses to hire a person simply because of their age, when there is no other apparent reason to deny them the position. Another example of workplace age discrimination would be if the employer is consistently denying certain people a pay raise or a promotion due to their age.
Termination based on age discrimination is also common. Another common scenario would be when the employer terminates an employee simply because they are getting close to the age of retirement. This is generally done in an effort to avoid having to provide retirement benefits; however, when this action is based on age discrimination, a civil claim may be necessary.
The federal Age Discrimination in Employment Act prohibits employers from discriminating against workers who are aged 40 and older, on the basis of their age. What this means is that employers may not make decisions about the employment of a person who is 40 or older, because of the person’s age.
Courts have interpreted the phrase “because of” to mean that an employee must show that age was the “reason” that the employer decided to act as they did. In other words, “but for” the person’s age, the employer would not have made the decision that was made.
Examples of age discrimination include, but may not be limited to:
- Discrimination in hiring, or refusing to hire a person solely because of their age;
- Discrimination in promotions, or not promoting a person because of their age;
- Discrimination in wages and salaries, such as paying employees differently based on their age;
- Discrimination in the termination of employment and in layoffs, such as firing or laying off a person solely because of their age;
- Denying benefits to older employees, such as when an employer reduces benefits based on age, only if the cost of providing the reduced benefits to older workers is the same as the cost of providing full benefits to younger workers; and
- Mandatory retirement in most sectors of the economy, which has been banned since 1986.
- Phased-in elimination of mandatory retirement for tenured workers, such as college professors, began in 1993.
It is important to note that mandatory retirement based on age is still permitted for executives who are over the age of 65, or in a high policy-making position.
To Whom Does ADEA Apply?
The Age Discrimination in Employment Act (“ADEA”) applies to private employers with at least 20 employees, as well as state and local governments. However, a slightly modified version of the law applies to federal government employees as well. The Act has prohibited mandatory retirement in most sectors of the economy since 1986. As was previously mentioned, elimination of mandatory retirement for certain tenured workers, meaning those guaranteed lifetime employment, has been phased-in since 1993.
The ADEA protects workers who are over 40 years old. Additionally, some states have enacted their own laws against age discrimination that apply to workers who are under 40.
In order to prove age discrimination at work when at trial, a person must present evidence that their employer made decisions regarding the person’s employment solely on the basis of the person’s age. They must also prove that the person was aged 40 or older.
There are two ways in which to prove workplace age discrimination. One is to prove “disparate treatment,” which means that a person was treated differently than other employees by an employer only because of differences in their age. Disparate treatment is considered to be intentional discrimination. The other way is to prove that an employer’s actions had a disparate impact on its employees because of their age.
Disparate impact occurs when policies, practices, or rules that appear to be neutral actually result in a disproportionate impact on a protected group or protected class. While the organization may not intend for its rules or policies to be discriminatory, disparate impact still occurs when the policy’s implementation has a discriminatory effect. As such, the policy is considered to be illegal in its application.
In order to effectivley prove age discrimination in employment, the employee must present:
- The testimony of witnesses;
- Documents; and
- Expert witness testimony in order to show the employer’s decisions, the reasons for those decisions, and their effect.
Are There Any Legal Remedies Available For Age Bias?
The remedies available for age bias depend on what the discriminatory action was, and the effect that it had on the victim. An example of this would be how if the plaintiff was wrongfully terminated because of discrimination, the remedy may include reinstatement to their original position, and/or back pay and benefits that they would have received.
Additionally, the employer will be required to cease all discriminatory practices, as well as to take the necessary steps to prevent future discrimination. Victims of discrimination may be able to recover court costs and expert witness fees, in addition to attorney’s fees.
According to the ADEA, where certain damages are not allowed, state laws may allow an employee to recover awards. An example of this would be how the ADEA does not allow employees to collect punitive damages, but does allow liquidated damages. Some states have determined that employees who win an age discrimination case will also be able to win punitive damages in especially egregious cases.
State laws may:
- Reach further than the ADEA in their protections of older employees;
- Cover smaller employers; and
- Provide additional types of damages that are otherwise not provided by the ADEA.
It is important to note that in age-related discrimination cases, victims cannot recover compensatory or punitive damages. However, victims of age bias may be entitled to liquidated damages.
If you were selected for a layoff because of your age, you may be able to recover front pay, which is the amount of time lost from the time of the trial to the future. You must show how the layoff affected you and your earning capacity.
If you lost your benefits, you could also recover the value of those benefits. However, because the laws governing what you may be entitled to recover can be complex, you should consult an attorney in your jurisdiction for guidance.
Do I Need A Lawyer To Get Remedies Available For Age Bias?
According to the ADEA, as well as some state laws, victims who have successful age discrimination lawsuits may also be awarded attorneys’ fees. Additionally, your attorneys’ fees will not be deducted from your damages award.
If you have been the victim of age bias in the workplace, you should contact a discrimination lawyer immediately. Your attorney can help you understand your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed, throughout the process.
