Age discrimination in the workplace persists as a serious and pervasive problem. Charges of age discrimination spiked during the Great Recession. It’s not easy to win if you file a complaint, but there are ways to bolster your case. Read on to learn about the law that protects you and what you can do if you or someone you know becomes a victim of age discrimination.
The Age Discrimination in Employment Act (ADEA) is a federal law that protects workers and job applicants age 40 and over from age-based discrimination in all aspects of employment. The ADEA does not apply to elected officials, independent contractors or military personnel. The law does apply to:
Employers with at least 20 employees
The federal government
State and local government (though remedies are often limited)
Labor organizations with at least 25 members
In addition, every state has a law that prohibits age discrimination in employment. Most state laws apply to employers with fewer than 20 employees, and often provide stronger protection for older workers than federal law.
The time limits for filing complaints and the procedures for resolving them differ from state to state and from the federal ADEA. The Workplace Fairness website provides information on each state’s discrimination law.
How the ADEA Protects You
The ADEA prohibits age discrimination in decisions about hiring, firing, layoffs, pay, benefits, promotions, demotions, performance reviews or any other condition of employment.
Under the ADEA, employers can’t:
Mention age or say that a certain age is preferred in job ads and recruiting materials; it is questionable but not automatically illegal to ask for date of birth or graduation on a job application
Set age limits for training programs
Retaliate against you if you file charges of age discrimination or help the government investigate charges
Force you to retire at a certain age (except for a few narrow exceptions)
The law also prohibits policies and practices that have a “disparate impact” on older workers. These are policies that appear to be age-neutral but fall more harshly on older workers. An example is a school district that announces it won’t hire teachers with more than 20 years of experience. Policies or practices that have a disproportionately adverse impact on older workers are unlawful unless the employer can prove they are based on a reasonable factor other than age.
Employee Benefit Protections
Under the ADEA, you can’t be denied the opportunity to participate in your employer’s benefit plans because of your age. Employers also can’t reduce benefits based on age, unless the cost of providing the benefit increases with age. In these instances, the employer must incur the same cost for providing the benefits to older workers as it does for younger workers in order to comply with the ADEA.
For example, the cost of providing life insurance increases with age. An employer does not violate the ADEA if it spends the same amount to buy life insurance for younger and older workers, even though the younger workers receive greater coverage for the same premium.
Pursuing a Claim
You have the right to pursue a claim if you feel you are a victim of age discrimination. Judging older workers on the basis of age rather than abilities is wrong, and age discrimination can have devastating effects on the financial security of workers at the time and into retirement. It’s a hard case to bring and a hard one to win, though. It can also be emotionally and financially draining, and you may never get your day in court. Talk with your family, and take the uphill nature of the battle into account.
Before you file a complaint, consider negotiating with your employer first or using your company’s established grievance system. If your case is strong, you may be able to persuade your employer to settle with you. Research shows employers are inclined to settle out of court in cases where employees have solid evidence of age bias.
If you decide to move forward, it’s important to have a strong case. Make sure to document remarks by your managers and others that you perceive as discriminatory. Keep emails and any other documentation that helps your case. Then take these steps:
- File a charge with the federal Equal Employment Opportunity Commission (EEOC)
This step comes before you can file a lawsuit. Call the EEOC at 800-669-4000 or visitthe EEOC website for details on how to file a charge. If at all possible, file a charge within 180 days of the discriminatory action or when you first became aware of the discriminatory action, whichever occurred first. In some states, the time limit for filing a charge is extended to 300 days. However, filing within 180 days is recommended, to be on the safe side.
The EEOC will notify the employer of the charge and will investigate it. If the EEOC determines that the charge has merit, it will attempt conciliation. This means the agency will try to persuade the employer to voluntarily eliminate and remedy the discrimination. If conciliation is not successful, the EEOC will decide whether to take legal action on behalf of the charging party. It is important to note that the EEOC does so in an extremely small percentage of the charges it receives.
The EEOC website offers more information on age discrimination.
- Find a lawyer
Get in touch with an employment lawyer in your state to talk about the merits of your claim and what you need to do under state law. You can find employment lawyers through the National Employment Lawyers Association: www.nela.org.
- File your lawsuit
After the EEOC has terminated its proceedings on a charge, the agency will issue a “right to sue” letter. In age discrimination cases, you don’t need to wait for this letter before filing a case in federal court. You can file your lawsuit at any time from 60 days after you file with the EEOC and up to 90 days after you receive the “right to sue” letter.
The ADEA offers important workplace protections, but it doesn’t stop some employers from running afoul of the law’s requirements. Be aware of your rights, and then carefully consider the pros and cons of pursuing a case before you act.
For tools, information and other resources on work-related issues, visit www.aarp.org/workresources.
© April 2014
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