Discrimination / Harassment: Age Discrimination

Federal and state discrimination laws are designed to promote employment of older persons based on their abilities, irrespective of age. The most important federal law, the Age Discrimination in Employment Act (ADEA), protects workers over 40 from being arbitrarily fired, refused a job, forced to retire, or treated unfairly with respect to pay, promotions, benefits, health care coverage, retirement plans, and other employment opportunities because of age. The ADEA governs all private employers with 15 or more workers. It also protects employees of labor organizations, unions, and local, state, and federal government employees. Many states have enacted even tougher laws protecting workers by reducing the number of employees an employer must have to be subject to the law or reducing the cut-off age for inclusion into a protected class (i.e., age 30 in a few states).

The following thumbnail sketch outlines what employers can generally do under the ADEA and state discrimination laws pertaining to age:

• Fire older workers for documented, inadequate job performance or good cause (e.g., excessive tardiness or absences)
• Entice older workers into early retirement by offering additional benefits, such as bigger pensions, extended health insurance, or substantial severance packages, that are voluntarily accepted
• Force employees to retire if the worker is 65 or older, has worked as an executive for the past two years and is entitled to a pension exceeding $44,000, or if the job calls for physical fitness (e.g., airline pilots or police officers) and age is recognized as a bona fide occupational qualification (BFOQ) factor in fitness and job performance
• Lay off older workers when younger employees are similarly treated
• Refuse to hire older applicants when successful job performance absolutely requires that a younger person be hired for the job (e.g., in the case of flight controllers)
• Make adverse decisions provided the acts are taken as a result of a demonstrated good-faith business decision that does not have a discriminatory impact on all older workers at the company

Tip: Some employers may legally discriminate against older workers when they hire independent contractors (which the law doesn't generally protect) or employ fewer than 15 workers and there is no state antidiscrimination law to protect the rights of older workers. Always check the law of your state to see what protection is available if you work for a small employer or are an independent contractor. Additionally, since some state agencies process discrimination cases more quickly than the EEOC and provide greater damages and remedies under applicable state law, consider pursuing your rights with a state agency or in state court after discussing your options with a labor lawyer.

The following actions are generally prohibited by federal and state law:

• Denying an older applicant a job on the basis of age
• Imposing compulsory retirement before age 70
• Forcing older employees into retirement by threatening them with termination or loss of benefits, unless the company has instituted a valid seniority system or retirement plan
• Firing older workers because of age
• Denying promotions, transfers, or assignments because of age
• Penalizing older employees with reduced privileges, employment opportunities, or compensation because of age

Significant damages are recoverable when a woman receives unfair treatment because of age. These may include job reinstatement in the event of a firing, wage adjustments, back pay and double back pay, future pay, promotions, recovery of legal fees, witness fees and filing costs, compensatory damages up to $300,000 depending on the size of the employer, and punitive damages. Recourse can also include the institution of an affirmative action program on behalf of fellow employees, counseling, and enhanced outplacement assistance.

Counsel Comments: Whenever an older employee (over 40) is fired and that individual is claiming discrimination, the issue is basically whether the company's decision was made because of age or was the result of a reasonable, nondiscriminatory rational business reason. Typically the older worker must use circumstantial evidence to prove an employer's motive was improper. This is sometimes done by demonstrating she was between 40 and 70 years of age, was doing satisfactory work, was fired, and the position was then filled by a substantially younger employee under 40. If a younger male employee replaces her, the female employee may also have a claim for sex discrimination. However, when employers support firing decisions with documentation of poor work performance or other factors, an older female worker's chances of proving age discrimination diminish.

Copyright 1998 Steven M. Sack