Age Discrimination

Age discrimination occurs when an employee is denied a job, terminated or discriminated against in any way by an employer because of their age. The Age Discrimination in Employment Act covers workers 40 or over.

If you believe that you have been the victim of age discrimination, we can help. At Spiggle Law, our team of attorneys has extensive experience fighting for workers’ rights and helping victims of age discrimination successfully recoup compensation. As the largest law firm in Virginia that focuses solely on employment law for employees, we will work as your advocates and advisers to help you fight back against illegal age discrimination practices.

Age Discrimination

As an older worker, you know there are unique challenges facing older employees with greater experience and salary history. What you may not be aware of is that you are protected by law from discrimination on the basis of your age. If you are denied a job, terminated or discriminated against in any way by an employer on the basis of your age, you may have a claim under the Age Discrimination in Employment Act. The Spiggle Law Firm can evaluate your case and help you determine if your rights are being violated.

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) was passed in 1967 to protect older employees from being discriminated against in the workplace. With the passage of the law, age became a “protected class,” just like race, gender, and religion. Essentially, this means that even when you work in a state where employers can hire and fire you for any reason, they cannot take your older age into account.

The ADEA does not apply to every worker, but it does provide comprehensive protection to those who are covered by the law. In order for the ADEA to protect you:

  • You must be 40 or over. Younger workers under the age of 40 do not have federal protections against age discrimination, even if employers act unfairly to favor older workers.
  • The employer must have at least 20 or more employees. The term “employee” is defined broadly, and even part-time workers may be considered employees for the purposes of determining whether the ADEA applies.
  • The ADEA not only applies to paid jobs but also to apprenticeship programs and labor unions. While employers are allowed to ask about your age and date of birth when you apply for jobs, age preferences generally cannot be included in job advertisements.

What Does the ADEA Prohibit?

The ADEA prohibits employers from considering age as a factor when making decisions about hiring, firing, or any of the terms and conditions of employment. This means an employer cannot:

  • Refuse to hire you because you are an older worker.
  • Decline to promote you because you are 40 or over.
  • Force you to retire from your job before you are ready on the basis of age.
  • Change jobs or accept a lower salary because you are older.
  • Lower your benefits because of your age or because of eligibility for Medicare as a senior.
  • Deny you training or opportunities provided to younger workers only.

Employers are not only prohibited from outright discrimination, such as telling you that you must retire because you are too old, but also from creating a hostile work environment or imposing job requirements that have a disparate impact on older workers.

A hostile work environment is created when you are made uncomfortable because of your age, and could occur when younger workers routinely tell jokes or treat you poorly because you are over 40. Any harassment by coworkers, managers or others in the workplace is all prohibited and an employer can usually be held accountable unless they had policies in place and took active steps to stop the harassment as soon as it was reported.

Disparate impact, on the other hand, refers to situations where employers impose tests that seem to apply neutrally to all workers but actually work to deprive many older people of employment opportunities. For the test or employment criteria to be valid despite the disparate impact, the employer must show a legitimate connection to the job. Otherwise, the test is a form of prohibited discrimination.

Are Employers Ever Allowed to Consider Age?

Although employers generally cannot make any employment decisions based on age, there are limited exceptions in situations when there is a legitimate need for someone who is under a certain age. For example, a movie that needs a child actor would be permitted to hire one.

Age alone is rarely considered a reason for denying a job though. Even when applying to be a security guard or a lift operator or for other physically demanding jobs, it is usually your ability to do the work that should be a deciding factor rather than simply your advanced age.

However, exceptions do exist and allow employers to consider age under very limited circumstances. For example:

Executives or employees in “high policy-making positions” can be required to retire at age 65 as long as they are paid pension/retirement benefits exceeding $44,000.00.

Age may be considered when hiring law enforcement or fire personnel under certain circumstances.

University professors with tenure may be required to retire at a stipulated retirement age

Outside of the limited exceptions, if your employer considers your age in your working conditions or in any way allows your age to affect your job, you should contact an attorney for help.

What Should You Do If You Are the Victim of Age Discrimination?

If you believe you are being discriminated against, harassed or treated differently because of age, you need to report this to your employer as soon as possible. Generally, your employer can avoid liability in an age discrimination lawsuit if the employer takes action to stop the discrimination. Be sure to document all reports that you make and any steps your employer takes (or does not take) to address the issues that you are having.

In addition to alerting your employer to the discrimination, you can also file charges with the Equal Opportunity Employment Commission provided your employer has 20 or more employees and is covered by the ADEA. Generally, you must file charges with the EEOC within 180 days of the discrimination in order for the EEOC to act on your behalf and investigate the discrimination complaint.

The EEOC will investigate claims, facilitate negotiation to resolve disagreements, and sometimes bring a case to enforce the ADEA within the United States Federal District Court. The EEOC may also issue a “Right to Sue” letter, which allows you to file your own lawsuit.

The EEOC often moves very slowly in investigating cases, and frequently decides not to act but instead lets victims of age discrimination protect their own legal rights. This means it is likely you will want to take legal action in court when you have been victimized by age discrimination.

To recover back pay, compensatory and punitive damages from your employer, you may be able to file a claim in state court under state nondiscrimination laws, or in federal court under the ADEA.

An experienced attorney can help you to gather the evidence you need so you will have the best chance of successfully proving your age discrimination claim. The Spiggle Law Firm has extensive experience helping victims of age discrimination to successfully recover compensation for discrimination. Give us a call today at 202-734-6112 to speak with a member of our legal team about how we can help with your case.

Three Things You Can Do Right Now.
  1. You must file a charge of discrimination with the Equal Employment Opportunity Commission within 180 days of the alleged act of age discrimination.
  2. You can file a lawsuit in court at any time 60 days after you file a charge of discrimination with the EEOC, but you must file no later than 90 days after you receive a Notice of Right to Sue from the EEOC.
  3. If you suspect discrimination, report it to human resources in writing and call a lawyer.

Frequently Asked Questions

I work for a small company. Can I still file a claim of age discrimination?

It depends on the size of your company. If your company does not have more than 20 employees, you may be out of luck. The ADEA applies to all employers with more than 20 employees; employment agencies; federal, state, and local governments; and labor organizations with 25 or more members. However, a state or local law might apply. For instance, the D.C. Human Rights Law applies to all companies within the District, regardless of the number of employees. If you are in Arlington, Virginia, you are covered by the Arlington County Human Rights Code, which covers any employer with four or more employees. But sadly, it is possible that you have little protection if your state or county does not have a law covering employers with 14 or fewer employees.

I am under 40. Do I have any recourse if I think I’m being discriminated against because of my age?

No. The federal law that governs age discrimination, the Age Discrimination in Employment Act, only protects employees who are age 40 or older. The U.S. Supreme Court has prohibited lawsuits by younger employees who claim “reverse discrimination,” meaning that employers favor older employees.

I am 62. My employer replaced me with someone who is 41. I think this was an act of age discrimination. Can I sue?

Yes, even though you are both over 40, given the significant difference in age, you may be able to make out a claim of age discrimination. Seek legal advice for your specific situation.

I am over 40. My employer hasn’t disciplined me, but he treats me differently than younger employees. Is this legal?

No. Your employer cannot single you out for differential treatment just because of your age. For example, your employer can’t deny training or other benefits to older employees or assign tasks that are undesirable, such as cleaning breakrooms or working the late shift on weekends, only to older employees.

Can an employer include an age requirement in a job advertisement?

Only if the age requirement is necessary to the operation of the business: for example, a restaurant can require applicants for bartending jobs to be of legal age to serve alcohol. Otherwise, age requirements are most likely a sign of potential discrimination.

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