By Tom M. Cramer, J.D.
More than 50 years ago, Congress made it illegal to discriminate against workers age 40 or older. But according to a joint-study conducted by the think tank, Urban Institute, and the journalism non-profit, ProPublica, older workers still face various forms of discrimination. Data from that study revealed more than half of adults over 40 were forced to retire early, often from jobs they held for years and were unwilling to give up.
The Urban Institute/ProPublica analysis was based on data from the Health and Retirement Study, which has followed 20,000 people since 1992, gathering information about their employment, starting from the year they reached age 50. From 1992 to 2016, older workers experienced a lay off at least once 56 percent of the time or involuntarily left jobs, resulting in significant financial damage for them. The Age Discrimination in Employment Act (ADEA) of 1967 was supposed to stop these kinds of discriminatory actions against workers over 40. But a 2009 Supreme Court decision took some bite out of the act when it decided older employees had to meet a more stringent burden of proof than those claiming discrimination based on race, religion or gender.
So, when is age discrimination actionable? The ADEA covers both employees and job applicants. It was designed to protect them against unfavorable employment decisions for hiring, firing or lay-off, promotion, pay and benefits, job assignments and training. It also addresses the issue of retaliation, which can occur if someone complains about being discriminated against. Every person’s circumstances are different, so it’s not easy to make blanket statements about what constitutes discrimination. But whether you seek out an early retirement package–or one is forced on you–it’s important to read all materials carefully so the financial circumstances are completely understood. You might consider seeking legal advice during this process. Lawyers are trained to review these packages and make recommendations for next steps.
Patterns in hiring processes can reveal troubling trends related to age discrimination. For example, in 2017, a restaurant chain, Texas Roadhouse, had to pay a $12 million in damages because the Equal Employment Opportunity Commission (EEOC) found that it was not hiring people based on their age for certain positions. Those roles were primarily servers, hosts, assistants, and bartenders. In many instances, these individuals may not have even realized they were being discriminated against because they hadn’t received an employment offer in the first place.
The ADEA also prohibits harassment of older workers on the job. Harassment is definedas unwelcome behavior that a person must tolerate in order to keep his or her job or treatment that causes what one feels is a hostile work environment. This could be teasing, telling jokes or making comments that are belittling to a more mature employee such as calling him “grandpa” or “old-timer.” It can also be in the form of cruel pranks or threats that cause an older employer to be fearful of coming into work. While a couple ofjokes may not provide cause for a harassment case under the ADEA, if you’re dealing with an untenable situation at work, it might make sense to talk to a legal advisor.
The ADEA also covers providing benefits to older workers under an amendment called the Older Workers Benefit Protection Act (OWBPA). Older workers must be offered benefits that are equal to those provided to younger workers. Sometimes benefits like life insurance may cost more for an older employee. As long as the employer spends the same amount on older and younger workers, the employer may be allowed to provide different benefits to the older workforce, dependent on certain requirements. Identifying whether the benefits plans are, in fact, equal may require the help of an outside legal consultant.
An older employer might also be given a waiver, an agreement that requires an employee to surrender his or her right to sue the company for age discrimination. This isoften signed in exchange for severance pay. In all situations involving a waiver, a legal consultant should be contacted. There are very specific laws pertaining to waivers and professional guidance will ensure you navigate and understand these complexities.
It’s never too early to seek legal aid for an age discrimination issue. An attorney can assist an employee from the very first step of filing a discrimination charge with the EEOC or fair employment practices agency. This step must be handled before a lawsuit can be filed for discrimination, so it’s important this is filed promptly and correctly.
While legal action is often the right choice for a marginalized employee, age discrimination cases can be difficult to win. Emails and other documentation of discrimination help reinforce a case. If you believe you are being discriminated against in the workplace, keep a careful record of the offenses. These will prove useful in supporting a strong case of repeated age-related discrimination.
Employers are sometimes more interested in settling a matter out of court if an employee has strong evidence of age bias. Before taking steps with the EEOC, some employers will negotiate with the individual who is feeling harassed or discriminated against. These out-of-court settlements may still require contacting an employment lawyer who will help to shepherd the complainant through the process.
Proving this type of discrimination–either in or out of the courtroom– can be an emotionally draining and painful process. Seeking out legal counsel can help ensure your complaint is handled in an efficient and timely manner. But taking the time to find acompassionate lawyer can make you feel supported along the way. After a difficult situation in the workplace, there’s truly no substitute for an advocate who truly cares about you and your case.
