Why Age Discrimination in the Workplace Can Be Tricky

Discriminating an employee or a job applicant on the basis of age is illegal under federal and state laws. The federal Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are 40 or older. Age discrimination refers to the act of treating an employee or job applicant less favorably because of his or her age. However, the application of this law is tricky because the law doesn’t protect workers under the age of 40. It is not illegal for an employer to favor an older worker over a younger one, even if both workers are 40 or older.

There are also other tricky areas. According to a recent Bloomberg news report, a federal appeals court has said that it amounts to ageism when an employer discriminates against people over 50 compared with those in the 40-50 age bracket. However several circuit courts have said that’s not the case, and for that reason, the case is likely to go to the U.S. Supreme Court in the near future. This case also raises questions with regard to how age discrimination should be measured.

Complexities in Age Discrimination

Age Discrimination in the Workplace
The federal age discrimination law looks and works like other provisions of civil rights law that prohibit employers from discriminating employees or job applicants on the basis of race, color, religion, sex or national origin. What makes the law relating to age discrimination a little different is the fact that it protects only those who are 40 and above. In this regard, the law doesn’t offer blanket protections like other provisions related to race or sex. The law prohibits ageism against people over 40.

So, it becomes complicated when an employer does not discriminate against everyone over 40, but just against a subgroup. In the case Bloomberg discussed in its article, Pittsburgh Glass Works LLC., the defendant, is alleged to have discriminated against people 50 and older when it laid off employees in 2009. However, it did not lay off people younger than 50, or people in the 40-50 age group, who are also protected under age discrimination laws. The allegations were made based on a statistical study of the layoffs.

Discriminating Against Sub Groups

The plaintiffs argued that the layoff patterns showed that people over 50 were affected more than those who were 40 or older. The company argued that plaintiffs should not be able to allege discrimination against just a subgroup of those protected by the law. Three other circuit courts accepted the employer’s argument in this case. However the U.S. Court of Appeals for the 3rd Circuit rejected that argument, which makes sense, because employers should not be able to discriminate one segment of a protected category over another.

This case could have potential consequences for others who are protected under civil rights laws. For example, if an employer were to discriminate against only women with children as opposed to all women, that should still be illegal. Or, if an employer chooses to discriminate against transgender individuals but not gay people, that should be a problem as well. As Orange County employment attorneys, we will be watching this case closely to see how it affects the people we might one day represent.

How the Law Protects You

The Age Discrimination in Employment Act prohibits age discrimination in decisions relating to hiring, firing, layoffs, pay, benefits, promotions, demotions, performance reviews, training or other aspects of employment. Under the ADEA, employers cannot do the following:

  • Mention age or say that a certain age group is preferred in job ads or recruiting materials. It is not illegal to ask for a date of birth on a job application.
  • Set age limits for certain training programs.
  • Retaliate against employees who file charges of age discrimination or help governmental agencies investigate discrimination charges.
  • Force you to retire at a certain age (although there are some narrow exceptions to this).

The law also prohibits employer policies that have a “disparate impact” on older workers. For example, when a company says it will not hire employees with more than 25 years of experience, that’s a policy or practice that could disproportionately affect older workers. Employers cannot do so legally unless they can show evidence that such policies or practices are based on some reasonable factor other than age.

In addition, under the law, you cannot be denied the opportunity to participate in your employer’s benefit plans because of your age. Your employer is prohibited from shortchanging you on benefits based on age unless the cost of providing the particular benefit increases with age. For example, an employer will not violate the ADEA if they spend the same amount to buy life insurance coverage for all employees despite the fact that the younger workers receive greater coverage for the same premium.

Fighting for Your Rights

If you believe you are the victim of age discrimination at the workplace, you have the right to seek legal remedies. Age discrimination can have devastating effects on your financial security, including retirement. It can also be emotionally draining to experience such discrimination. The first step is to consider negotiating with your employer or going through human resources. If that doesn’t work and you decide to move forward with a complaint or lawsuit, make sure to document remarks by supervisors. Save all emails, internal memos or any other documents that helps substantiate your case.

File a complaint with the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). Contact an experienced employment lawyer orange county to talk about the merits of your claim and to understand your rights. After the agency has terminated its proceedings on a charge (or immediately if you ask), it will issue what is known as a “right to sue” letter.

It’s important to understand that while the law offers important workplace protections, it doesn’t stop some employers from violating the rules or exploiting loopholes in the law. Be aware of your rights at all times. Contact an experienced lawyer who can help you seek and obtain compensation for back pay, loss of future income, loss of benefits and emotional distress. Call Haeggquist & Eck at (949) 724-9200 for a free consultation and comprehensive case evaluation.