Many people think of age discrimination as only affecting the elderly. However, the age at which an employee is protected from discrimination impacts a significant portion of the working population under federal law. New York law takes a step further safeguarding most employees regardless of age. The best way to minimize age discrimination claims is to understand the rules.
Federal law
ThThe Age Discrimination in Employment Act (ADEA) generally prohibits employers from making employment decisions based on the employee’s or applicant’s age. The law protects those aged 40 or older who work for or apply to work for a company with 20 or more employees.
New York law
Under current New York State and New York City law, all employers with 4 or more employees are prohibited from making employment decisions based on age. However, beginning on February 8, 2020, the law will be expanded to include all employers, regardless of how many employees they have. Unlike federal law, there’s no need to wait until you’re forty to be covered. New York protects those 18 years and over.
Disparate treatment vs disparate impact claims
Claims of age discrimination typically involve intentional age-based actions (disparate treatment). These can occur in any aspect of employment including hiring, firing, salary, benefits, apprentice and training programs, promotions, work assignments and other terms and conditions of employment. However, discrimination may also result from a seemingly neutral action that has a negative impact on those in the protected age group. For example, lay-offs or job qualifications that disproportionately affect a certain age group.
Defenses
In a disparate treatment claim, an age-related qualification or decision may be defensible if it is job-related and consistent with business necessity. However, where the claim involves disparate impact, the employment policy or practice must be based on a reasonable factor other than age (RFOA). An employment practice is based on an RFOA when it is “reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.” For example, a job as a police officer or firefighter requires a physical fitness test, which may tend to exclude older applicants. If the employer can demonstrate that the test is based on an RFOA, it will avoid liability for age discrimination.
Retaliation
Under both federal Equal Employment Opportunity law and New York State Labor law, retaliation by an employer is prohibited. Retaliation occurs when an employer takes an adverse action because an applicant or employee asserts rights protected by the EEO laws. Examples of retaliation include dismissal, demotion, disciplinary action, cut in work hours or pay, reassignment to a less desired work location and other actions penalizing a worker.
Avoiding and addressing age discrimination
Employers should provide appropriate training to supervisors and hiring managers to minimize potential discriminatory actions. In addition, a written employee handbook is essential and should include the company’s policies against discrimination and outline complaint procedures. In the event of a complaint, employers should consult legal counsel regarding the investigation and documentation of the allegations and any actions taken by the employer.
Applicants or employees who believe they have experienced age discrimination should document their claim and keep careful records of discriminatory conduct, the employer’s response to the complaint, and any retaliatory actions.