We hear a lot about racial and sex discrimination in the workplace. But age discrimination is just as prominent: treating an applicant or employee less favorably because of his or her age.
The Age Discrimination in Employment Act (ADEA), which is a federal law, protects workers and job applicants age 40 and over from age–based discrimination. It’s important to understand the facts about this law (and what happens if you don’t follow it), so we’re answering common questions about age-based discrimination in the workplace.
Q: Do age-based discrimination laws apply in smaller companies?
A: The federal ADEA applies only to employers that have “20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” However, most states have their own laws governing discrimination, so you also need to be familiar with the laws of the states in which you operate.
Q: How can we steer clear of age-based discrimination lawsuit risks?
A: There are several things you can do to help prevent age discrimination issues in your workplace. Make sure to share these tips with HR and other relevant departments:
- Understand the federal and state laws under which you operate.
- Avoid making implied promises of job security in recruiting materials, personnel policy manuals, and handbooks.
- Ensure that
the employees responsible for making employment offers don’t make statements that can be construed as “guaranteeing employment.”
- Avoid statements during disciplinary action, hiring procedures, or other discussions such as: “I don’t think you can do the job like you used to,” “We are going to get some new/fresh faces in here,” or “We would like to hire someone who is going to be here for a long time.”
- Make sure that employees more than 40 years old receive the same discipline as those under 40 for like or similar conduct.
- Verify that pay rates for equal jobs are comparable with the various age groups within the company.
- Closely monitor all policies and procedures as they relate to discipline, promotions, pay increases, and interviews to make sure they are administered in a fair, nondiscriminatory manner.
Q: Does the court use a standard to gauge whether age-based discrimination has occurred?
A: The Supreme Court set forth the framework for establishing a case of intentional age discrimination. The plaintiff, who claims that he/she was not hired because of age, must demonstrate that:
- The plaintiff is a member of a protected age group
- The plaintiff was qualified for the position in question
- Despite being qualified, the plaintiff’s employment was adversely affected
- Someone younger, with similar or lesser qualifications, replaced him/her
If the plaintiff successfully establishes elements one through four, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
The plaintiff will then have the ultimate burden to establish that the employer’s reasons are “pretext” for discrimination (not worthy of belief).
Q: If an age-based discrimination suit is filed against my business, what should I do first?
A: Contact your attorney immediately.
Q: If I’m found to have violated the ADEA (Age Discrimination in Employment Act), what penalties can I expect?
A: The penalties may include any one or more of the following:
- Require managers to sign a statement regarding the ADEA and undergo EEOC training
- Provide neutral and fair employment references to a prevailing plaintiff
- Payment to employee of compensation lost because of age discrimination (back pay)
- Liquidated damages of double the back-pay award
- Payment of plaintiff’s attorney fees, in full or in part
Costs of defending an ADEA case vary dramatically depending on the underlying facts, the number of individuals involved in the case, whether the EEOC is a party to the action, whether the case is before a judge or jury, whether the case goes through appeal, and the attorney representing the plaintiff. The costs of these cases can range between $45,000 (no jury) and $150,000 (or higher). –Michael J. Lissau