Age Discrimination at Work

By: Source: AARP.org Date Posted: 2006-01-19 14:32:05.477978-05:00

Workers should get and keep jobs based on their ability, not age. The Age Discrimination in Employment Act (ADEA) protects people age 40 and over from employment discrimination based on age. The law says that an employer may not fire, refuse to hire, or treat you differently than other employees because of your age.

Have any of these things ever happened to you?

The employer wanted a younger-looking person to do the job so you weren't hired.
First, your boss wouldn't let you take some training courses. Then you got a poor job evaluation because you weren't "flexible" in taking on new assignments.
Money was tight, so your boss fired you in order to keep younger workers who are paid less.
Your employer gave you undeserved poor performance evaluations and then used your "record" of poor performance to justify firing or demoting you.
Your boss turned you down for a promotion. Instead, he hired someone from the outside who was younger because the company says it "needs new blood."

If you answered "yes" to any of these, you may be a victim of age discrimination.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) is your first defense against age discrimination. There has to be a lawful reason - not connected to age - for almost all employment decisions.

Who Is Covered by the ADEA?

The law covers workers and job applicants age 40 and over.
The ADEA applies to employers with 20 or more employees. This includes local and state governments and the federal government. It also includes employment agencies and labor unions.
The ADEA does not apply to independent contractors or elected officials. It does not usually cover police and fire workers, certain federal employees in air traffic control or law enforcement, or certain highly paid executives. While persons in these positions could be retired on a mandatory basis, they cannot be denied a promotion or training base on age.
There are exceptions to the ADEA when age is a necessary part of a job. For example, an employer can hire a young person to play the role of a 12-year-old in a play.
Most states have anti-age discrimination laws that apply to employers with fewer than 20 employees.

What does the ADEA forbid?

Job ads or recruitment materials cannot mention age or say that a certain age is preferred.
Programs cannot set age limits for their trainees.
Age can not be a factor in making any decisions about workers. This includes decisions about hiring, pay, promotions, or layoffs.
Employers cannot take action against workers who file a charge of age discrimination or who participate in any ADEA process.
With a few exceptions, employers cannot force employees to retire at a certain age.

Employers may offer voluntary early retirement without violating the ADEA. However, these offers often require employees to give up their right to make a claim under the ADEA. That requirement may be legal, but only if it follows strict rules. Get expert advice before you sign anything.

What to Do

If you feel you've been discriminated against on the job, talk to your employer to see if you can resolve the matter.

If you can't resolve the matter, you have the right to file a charge with the Equal Employment Opportunity Commission (EEOC). This is the federal agency in charge of enforcing the ADEA.

There are very strict periods for filing a charge. The EEOC can help you only if you keep to all the time requirements. Usually, you must file your charge within 180 days after the alleged act of discrimination. It is best to act as soon as you suspect discrimination.

Call the EEOC at 1-800-669-4000 or go to www.eeoc.gov to find out where the closest EEOC field office is. They can transfer you to that office. Get details on exactly what you have to do to file a charge.

You can file your charge in person, by mail, or by phone. Your EEOC field office will tell you if you should also file a charge with your state anti-discrimination agency.

It is up to you to gather all the documents that support your charge. The EEOC, or a private lawyer, can tell you what to provide.

If you can, it is best to file in person. In any case, get a date or time-stamped receipt for everything that you submit.

If you file a charge with the EEOC:

The EEOC notifies the company that a charge of discrimination has been filed against them.
The EEOC makes the decision to investigate the charge immediately or to proceed with a fact-finding process.
During the fact-finding process, EEOC asks both parties for supporting documentation about the alleged discrimination.
In the meantime, the EEOC attempts to resolve the problem between the employee and the employer through mediation. It uses a neutral third person to assist you and your employer settle a charge of discrimination. Mediation is voluntary and confidential. You do not lose any rights when you agree to try mediation.
If no agreement is reached in the fact-finding process, the EEOC will decide whether to investigate the case further, to consider it for legal action, or to close the case.

Employees Can Go to Court

Most charges filed with the EEOC are investigated and dismissed. Very few proceed to a court case. However, if the EEOC does not resolve your charge, it is your right to sue on your own. The time limits for this are also very strict. Typically, you have 90 days from receiving notice that the EEOC has terminated its proceedings.

Litigation takes a great deal of commitment, time, and money. It can take an emotional and personal toll on you and your family. Before you decide to file a lawsuit or not, discuss these concerns with your lawyer and your family.

Do Your Research before Acting

AARP Foundation Litigation may be able to represent older workers who need legal help with age discrimination. A main requirement is that the problem affects both you and many other older people. In this way, AARP can have a large impact on problems affecting older workers.

The National Employment Lawyers Association is a nonprofit, professional membership organization of 3,000 lawyers. They represent employees in employment matters.

The Equal Employment Opportunity Commission (EEOC) has information for employees on federal laws that prohibit job discrimination. They also show how to use mediation and how to file a complaint.

AARP Resources

Age Discrimination Quiz
Take this quick true-false quiz to test what you know about your rights.

Boomers Discover Age Bias
AARP explains the increase in age bias complaints.

Another Way for Employees to Win AARP advises caution when you're asked to sign away your rights to sue an employer for discrimination.

Simple Justice
See what a record-setting age discrimination settlement could mean in your workplace.

AARP Litigation - How We Can Help You
If you need legal help, check here to see if AARP may be able to represent you.

AARP Volunteer Legal Review Program If you think you're a victim of age discrimination, send a detailed letter to P.O. Box 50228-MO3, Washington, DC 20091-0228 (or email to litigation@aarp.org). A volunteer attorney can assess your case. For an online copy of AARP's booklet "Age Discrimination on the Job" (D12386), go to http://www.aarp.org/research/legal-advocacy/. For a hard copy, email member@aarp.org with name and stock number.

Additional Resources

National Employment Lawyers Association (NELA) Find NELA lawyers in your state.

Age Discrimination
From Workplace Fairness, the education arm of the National Employment Lawyers Association. Details on all aspects of age discrimination and how to fight it.

Minimum Number of Employees Needed to File a State Claim
Click on your state to see which employers are covered by state anti-age discrimination laws.

Equal Employment Opportunity Commission (EEOC)
Understand the ADEA and other employment laws. See what the EEOC does to protect you.

How To File a Charge of Discrimination With the EEOC

EEOC Field Offices Find the EEOC Field Office that will help you.

Books

Find these books online at Barnes and Noble.com

out of stock

Job Rights & Survival Strategies: A Handbook for Terminated Employees, Paul H. Tobias, Susan Sauter, National Employee Rights Institute, 1997. Practical tips and wise advice. Read this book first if you think you are a victim of age discrimination.

Your Rights in the Workplace, Attorney Barbara Kate Repa, Nolo Press, 2002. Chapter 7 explains illegal discrimination and what to do about it.