Labor & Employment

AGE DISCRIMINATION

Age discrimination can happen in the workplace in a variety of ways. An adverse employment action may be obvious, in the form of discharge or layoff, or more subtle, in the form of being denied a promotion, paid a lower salary, or receiving fewer benefits. Employees aged 40 years old and older are protected by the federal Age Discrimination in Employment Act of 1967 (ADEA).

Often, when employers seek to cut costs and reduce expenses, it is older employees who suffer. After years of employment, older workers may earn higher salaries than younger workers. Thus, an employer seeking to reduce overhead will look to reduce expenses by eliminating older workers from the payroll. In addition, older workers generally face more health problems than younger workers. Congress has acknowledged that providing benefits to older workers can be more costly than providing the same benefits to younger workers. To address this problem, the Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA in order to prevent employers from denying benefits to older employees.

Some age discrimination cases concern disparate impact. These cases focus on whether the company has a policy that has intentionally or unintentionally has a negative impact which unfairly affects older workers.

Other age discrimination cases are about disparate treatment. Disparate treatment means that a particular person is treated less favorably because of his/her age. The McDonnell Douglas case sets forth the elements necessary to create an inference of unlawful discrimination. The employee must be able to show that he or she is:

  1. over 40 years old;
  2. performing the job satisfactorily;
  3. subjected to an adverse employment action (i.e., termination, demotion, etc.); and
  4. been replaced by someone “substantially” younger and with similar job qualifications.

Once the employee successfully establishes these four criteria, the burden then shifts to the employer to show that there was a legitimate, non-discriminatory reason for the adverse employment action. The employee must then show that this reason is pretextual - a mere cover to hide discriminatory behavior. If successful, the employee may receive any of many remedies, including back and front pay, emotional distress damages, punitive damages, injunctive relief in the form of reinstatement, and attorneys' fees.

Call Laura Davenport if you are 40 years of age or older and have been discriminated against at your place of employment. There are certain actions that can be taken to assert your rights. Laura Davenport’s knowledge of the complexities of employment law can benefit you.