Workers who believe their age has cost them — whether it's a job, a promotion, a raise — have options for fighting back. Eric Bachman and Kellee Boulais Kruse, legal specialists in employment discrimination, recommend these steps:
1. Talk with a supervisor.
“It doesn't have to be a formal complaint right off the bat,” says Bachman, a principal at Zuckerman Law in Washington, D.C. “Sometimes the issues can be addressed in an informal conversation."
2. Keep a log.
Document comments and actions you believe were driven by discrimination and keep any records, such as emails. A time line is helpful, especially to show retaliation after a complaint has been lodged. But don't record conversations secretly if that runs afoul of state laws or company policies, says Kruse, a principal at the Employment Law Group P.C. in D.C. And don't transfer emails or documents to outside parties or a private email if that violates company rules. A fired worker who can't take confidential information with them when they leave should note the dates of emails and names of documents on the company network. They can request these later as part of any legal proceedings, Kruse says.
3. Lodge a complaint with the company.
If conversations with managers don't achieve anything, go through the organization's formal complaint process, whether it's via the human resources department or a higher-level manager. Make sure your concerns and observations are in writing.
4. Get a lawyer.
You need someone to educate you on your options. For example, the filing deadline for an age discrimination case at the Equal Employment Opportunity Commission is generally within 180 days from the time of the offense, though workers in some states have more generous deadlines. Kruse points out that a lawyer can help a worker decide where to best file the claim — such as in the state where the person works or the jurisdiction where the company is headquartered. Lawyers usually take these cases on a contingency basis; if you win, the lawyer gets a percentage of any monetary judgment. Some law firms and organizations may offer pro bono (free) or reduced-price help. A good place to start is the National Employment Lawyers Association website — nela.org — and search the Find A Lawyer directory. The American Bar Association offers, among other services, a virtual clinic for dispensing free advice; go to ABAFreeLegalAnswers.org.
5. Submit an inquiry to the EEOC.
You can do this before deciding whether to file a formal complaint with the EEOC, called a charge of discrimination. (Submit online or call 800-669-4000 for help in sending an inquiry through your local EEOC office.) Formal complaints are investigated either by the EEOC or by state and local fair employment practice agencies. States that have their own investigators and work-sharing agreements will share the information with the EEOC. Note: Federal employees must use a different process that starts with contacting the equal opportunity counselor at their agency within 45 days of the discriminatory action.
6. Consider mediation.
The EEOC offers mediators who can help resolve disputes. Mediation is voluntary but can lead to agreements between the worker and the employer that are settled more quickly and more cheaply for both sides.
7. File a lawsuit.
Before you sue, you must have already filed a complaint with the EEOC. If you don't hear from the EEOC after 60 days, you can file the lawsuit. If you do get a “right to sue” letter, you have just 90 days to take action. In some cases where the EEOC finds evidence of discrimination, it encourages the sides to find a solution. In other cases, it issues the right to sue letter to a worker whose case it isn't going to handle. In some cases, the EEOC may file the lawsuit on your behalf. “If an employee feels mistreated because of their age, we are here to enforce the law,” says Ray Peeler, EEOC assistant legal counsel.
8. Support POWADA and other legislation.
Efforts to improve federal age discrimination laws have stalled in recent years. You could help the process by urging your members of Congress to help level the playing field for older workers by supporting passage of the Protecting Older Workers Against Discrimination Act and the Protect Older Job Applicants Act. Some states also have enacted laws that protect older adults from discrimination in the hiring process and in the workplace.
Editor’s Note: This article originally was published on December 30, 2019. It has been updated with more recent information on federal and state age discrimination legislation.