Age discrimination in employment can affect virtually every worker at some point in their career. It often occurs much earlier than most employees imagine. In fact, most laws recognize age discrimination beginning at 40 years old. While employers must take care to avoid or minimize possible discriminatory conduct, not all cases of differential treatment are illegal. Businesses should seek legal advice regarding what is permissible and how to respond to claims and mitigate potential liability. Employees who may be victims of discrimination also need legal assistance to help them understand their rights and how best to enforce them.
What Is Age Discrimination?
Laws prohibiting age discrimination are designed to protect employees from adverse or inferior treatment based on their age. Employers cannot consider an employee’s (or prospective employee’s) age when making decisions related to hiring, firing, promotions, salary, benefits, or other terms and conditions of employment. Notably, the age used for determining discrimination may vary under federal, state, and local laws.
Illegal discriminatory conduct can be intentional or consist of a seemingly neutral business policy that has a disparate impact on older employees. For example, lay-offs or job qualifications may disproportionately affect a certain age group without calling that group out directly.
Harassment based on the employee’s age is also illegal. This can include offensive, abusive, or threatening comments and inappropriate physical contact.
As with all discrimination laws, employers cannot retaliate against employees for reporting or threatening to report age discrimination.
What Laws Prohibit Age Discrimination?
Various federal, state, and local laws prohibit age discrimination in employment. As the requirements vary, it is important to consult an attorney about which laws may apply to a given situation.
Age Discrimination in Employment Act
The federal Age Discrimination in Employment Act (ADEA) protects employees from discrimination based on age in any term, condition, or privilege of employment. The law only applies to employers with at least 20 employees, labor unions and employment agencies. Further, employees must be over the age of 40 to be eligible for ADEA protection. Claims can be brought by current and former employees, job applicants and participants in training programs or apprenticeships. Independent contractors do not qualify.
Older Workers Benefit Protection Act
The federal Older Workers Benefit Protection Act amended ADEA by providing additional protections to older workers. These include prohibiting employers from targeting older workers in layoffs and reducing fringe benefits based on age. The law also requires employers to follow certain procedures when asking workers to waive their rights to sue for discrimination. Such waivers are typically included in severance agreements.
New York State Law
The New York State Human Rights Law (NYSHRL) also prohibits age discrimination in any term or condition of employment. However, unlike federal law, the law applies to all employers, regardless of how many employees they have. Furthermore, New York protects all employees age 18 years and over, and prohibits discrimination against younger employees. The law also applies to independent contractors.
New York City Law
New York City Human Rights Law (NYCHRL) offers substantially similar protections to those provided by the NYSHRL, but is limited to employers with 4 or more employees.
There is a limited defense to valid age discrimination claims. Where the claim is based on intentional different treatment, 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). This means the policy or practice must be “reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”
How Can Employees Enforce Their Rights?
Generally, the first step for an aggrieved employee is to file a complaint with the employer in accordance with the employer’s reporting procedures. If that does not resolve the matter, the next step varies depending on the law that applies. Employees may need to file a complaint with a federal, state or city agency before turning to the courts. Employees should carefully document their claim and keep records of discriminatory conduct, the employer’s response to the complaint, and any retaliatory actions.
Filing a Complaint
Under federal law, employees must file a complaint with the Equal Employment Opportunity Commission (EEOC) before going to court. This must be done within 300 days of the last act of discrimination. If the EEOC does not resolve the claim within 180 days, the employee can obtain a “Notice of Right to Sue” from the EEOC and then bring an action in federal or state court within 90 days of the date the notice was received.
New York State law provides that employees can file an age discrimination complaint with the New York State Division of Human Rights (NYSDHR) or bring a lawsuit in the New York state courts. If an employee goes to the NYSDHR, the agency will review the complaint and then decide whether to send it to an administrative law judge for a final order. Employees can appeal these orders to state court, if necessary. The complaint must be filed with the NYSDHR within one year of the last alleged act of discrimination. Where an employee chooses to go straight to court, the suit must be brought within three years of the last act of discrimination.
In New York City, complaints may be filed with the New York City Human Rights Commission’s (NYSHRC) Law Enforcement Bureau or the employee can go to court. The same deadlines for filing with the agency and court apply as under New York State law.
What Damages Are Available in Age Discrimination Actions?
Under federal law, victims of discrimination may be awarded past and future lost wages and benefits as well as attorneys’ fees, expert witness fees and court costs. Where an employer has engaged in intentional age discrimination, victims may also be entitled to “liquidated damages” equal to the amount of back pay awarded the victim.
The ADEA also permits injunctive relief. Employers may be ordered to stop any discriminatory practices and take steps to prevent discrimination in the future. They also may be ordered to hire, promote, or reinstate the employee, if appropriate.
New York state law grants injunctive relief and damages for lost wages and benefits and emotional distress.
Age discrimination is a pervasive problem and employers must be proactive about minimizing illegal conduct. An experienced employment attorney can help employers implement anti-discrimination policies, procedures, and training and respond to complaints appropriately.
Employees who experience age discrimination should also obtain skilled legal representation to ensure they navigate the different employment laws correctly and can fully enforce their rights.
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