Q: Who is protected by the Age Discrimination in Employment Act (ADEA)?
A: The ADEA covers government workers as-well-as private employees over 40 years of age who work for employers with 20 or more employees. The ADEA covers government workers as well as private employees. Most states also have laws that protect workers from age discrimination and may cover employers more broadly than the ADEA.
Exceptions to ADEA protection include the following:
- Executives or people "in high policy-making positions." These individuals can be forced to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more;
- Police and fire personnel, tenured university faculty, and certain Federal employees in law enforcement and air traffic control. If you are in one of these categories, check with your personnel office or benefits plan office for details;
- When age is an essential part of a particular job, or a "bona fide occupational qualification" (BFOQ). For example, if a children's clothing store needs models, youthfulness is a necessary part of the job;
- State government workers. These individuals are not allowed to sue for monetary damages under the ADEA, but can sue for “injunctive relief” to force the state to stop the discrimination.
Q: What kind of conduct constitutes age discrimination?
A: Age discrimination can range from the most visible examples of bias, such as when a bank hires a young, inexperienced bank teller instead of an older woman who has years of experience in the field, to more subtle instances of discrimination, such as when an executive is moved to a smaller office after he or she reaches age 55, or when a promotion is filled by a younger staff member before the older workers even hear about the opening.
Opportunities in all phases of the employment process, including recruitment, hiring, training, promotion, job assignments, pay, and benefits, must be equally accessible to and inclusive of people of all ages. Individuals over 40 years of age may not be singled out for firing, demotions, or layoffs based on their age.
Q: What kinds of damages can I recover in an age discrimination lawsuit?
A: Victims of discrimination in the workplace can recover back pay (lost wages), front pay (future lost wages), promotion, or reinstatement to the position that was denied because of discrimination; compensatory damages for emotional distress; punitive damages against an employer if he/she was acting with malice or reckless indifference; attorney’s fees and court costs; and any other award that would make the victim “whole,” (put the victim in the same position he/she would have been absent the discrimination). The employer may also be forced to take corrective or preventative measures to ensure that the discrimination does not happen again.
Q: If I feel I am being discriminated against based on my age, what should I do?
A: If you feel you are being discriminated against based on your age, you should first use whatever complaint procedures are available to you through company management. Check your company's employee handbook, personnel policies or manual for a discrimination or complaint policy. If the company does not have a formal complaint procedure, ask someone in the human resources or personnel department how to make an age discrimination complaint. Make any reports in writing in order to create a paper trail of the discrimination. Be specific about the nature of the discrimination, thoroughly documenting the details of the misconduct. Consider keeping a diary or journal of the discrimination.
Q: I am 50 years old and the company I work for has just laid off a large number of employees, including myself. Could this be age discrimination?
A: Possibly. Under the ADEA, all employment decisions, including terminations or lay-offs must be executed for a reason other than age. Valid reasons for a lay-off include the genuine economic distress of the employer or poor job performance by the employee. In a large scale lay-off, if most of the employees who were laid off were over the age of 40, and the majority of employees who maintained their jobs were younger than 40, there may be a basis for an ADEA complaint or lawsuit. Your claim would be particularly strong if the employer hired younger workers to take the place of workers over 40 who were laid off.
Q: Is it legal for my employer to lay me off just before my pension vests?
A: If the employer laid you off for a legitimate reason, such as poor work performance, it may be legal. If the employer laid you off because of your age (because he or she didn’t want to pay the benefits due), then it is illegal.
Q: What does it mean when an employer asks me to sign an agreement waiving my rights under the ADEA?
A: Older employees may be asked by their employers to sign waivers, releases or agreements not to sue. In exchange for signing the waiver, the employer usually offers the employee an incentive for early voluntary retirement, such as a significant amount of severance pay. There are a number of restrictions on such waivers. For more information please see the “Waiver of ADEA Rights” section above.
Q: My employer recently gave me a poor performance evaluation that I didn’t deserve and then used the negative evaluation as an excuse to fire me. Could this be age discrimination?
A: This is a common tactic used by employers to justify age discrimination. It is legally referred to as creating a “pretext” for discrimination. If you are over forty, and the poor performance evaluation was merely an attempt to cover up age bias, this situation could indeed constitute age discrimination.
Q: I am fifty-two years old and have twelve years experience working as a secretary for a major law firm. Recently, a new boss made life so difficult that I finally quit. Is this age discrimination?
A: It is possible that you have experienced age discrimination. In this case, it is important to determine whether or not your boss hired a younger individual to replace you. If he did, this may constitute age discrimination. Under the ADEA, preferential treatment usually may not be given to a "younger-looking" employee.
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