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Age Discrimination Claims Reach Record High

Older workers, hit hard by the recent layoffs and job losses, filed a record-high number of age discrimination complaints against private sector companies last year, the highest level in almost two decades.

About 24,580 charges were filed with the Equal Employment Opportunity Commission (EEOC) in the fiscal year that ended Sept. 30, 2008, jumping 29 percent over the 2007 total for age discrimination, and even higher than the 15 percent rise in discrimination charges overall, which include claims by race, sex and disability.

With continuing layoffs and the unemployment rate at 8.1 percent, age discrimination claims may even be higher this year, says one veteran employment attorney.

“The wave is still building,” says Gerald L. Maatman Jr., editor of the annual Workplace Class Action Litigation Report for Seyfarth Shaw, a law firm in Chicago that annually analyzes claims against employers in federal and state courts. Maatman predicted that the number of age discrimination complaints will peak in the third quarter of this year.

There’s no question that layoffs trigger cases, says Elaine Drodge Koch, a partner in the Kansas City, Mo., law firm Bryan Cave. “People are questioning, ‘Why was I laid off?’ ” Workers may feel unfairly targeted because they’re over 40 and so they file an EEOC complaint. Claims are also rising, she says, because “we’ve got managers doing layoffs who haven’t done them before,” and they may not follow safeguards such as various statistical tests before issuing pink slips.

If the employer asks laid-off workers to sign a waiver agreeing not to sue, federal law requires the employer to supply the employees with data on how many are age 40 and older, along with other layoff-related information. As part of considering the possibility of age discrimination, EEOC compares “the ages of who the employer decided to keep and who was cut,” says Ray Peeler, a senior attorney adviser at the EEOC. The agency also will weigh all the surrounding facts and circumstances to determine whether age discrimination influenced layoff decisions.

The Age Discrimination in Employment Act of 1967, or ADEA, protects anyone 40 or older from employment discrimination in hiring, firing, layoffs, promotions and pay. It applies to employers with 20 or more employees, including state and local governments, and covers benefits including severance pay if it is offered.

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