Age Discrimination: How to Recognize it, and What to Do if it Happens to You?

According to a 2017 AARP survey of 3,900 workers over the age of 45, more than 61 percent reported having experienced or having seen age discrimination in the workplace, with 40 percent describing the practice as “very common.” While the detrimental effects of age discrimination are not hard to imagine in regard to the older workers who experience it, age discrimination can also have many negative effects on the companies where it occurs, including depriving the company and younger workers of needed mentoring, leadership, expertise, and experience in the workplace. Age discrimination can also decrease productivity and production by the victims of such discrimination and, consequently, increase employee turnover and preventable hiring and training costs. Claims of discrimination can also cause significant harm to a company’s reputation and to employee morale, and can potentially subject the company to expensive age discrimination claims and lawsuits. Based on this troubling backdrop, coupled with the ongoing skilled labor shortage in the roofing industry, it is important for companies to understand their obligations to older employees in their workforce, as well as for employees to know and understand their rights and remedies against unlawful age discrimination that they may experience in their workplaces.

The Age Discrimination in Employment Act of 1967 (ADEA) bans employers with 20 or more employees from engaging in age discrimination against applicants and employees who are 40 years of age or older. Additionally, the ADEA actually allows employers to favor workers based on age even when doing so adversely affects younger workers who are under 40. However, most states and many municipalities also have statutes or ordinances in place that prohibit discrimination based on age, and many expand those protections to workers of any age (i.e., prohibiting discrimination against workers for being too young) and to employers with fewer than 20 employees. Thus, besides understanding the federal legal framework concerning age discrimination, it is important to also know and take into account the state and local laws where your company is situated to make sure your company is complying with all of the anti-discrimination laws that may apply to it.

Recognizing Age Discrimination

Age discrimination occurs when an employee or applicant is harassed or discriminated against because of his/her age in regards to hiring, firing, salaries, raises, promotions, demotions, discipline, assignments, training, job postings, job descriptions, interviews, benefits and/or other terms and conditions of employment. Examples of age discrimination against people over 40 include, but certainly are not limited to:

  • Firing an employee whom the employer believes has become too old to perform the job
  • Setting age limitations or preferences as a job prerequisite
  • Not interviewing or hiring someone because they are viewed as “too old” to fit in with the company’s culture or other employees
  • Advertising for someone to join a “dynamic, young team”
  • Not hiring older workers because it’s assumed they will soon retire
  • Paying for training for younger employees but requiring older employees to pay for the same training out-of-pocket
  • Not providing training to older employees because “it’s not worth it”
  • Giving younger associates better assignments because they will be there longer than the older employees
  • Turning down older workers for promotions and promoting less qualified younger workers
  • Laying off older employees or forcing older employees to retire because they require higher salaries than younger employees
  • Giving younger employees better health insurance coverage than older employees in order to cut costs
  • Giving unfair discipline or harsher criticism to older employees than that given to younger employees
  • Making or allowing derogatory or offensive comments or remarks in the workplace about someone’s age
  • Engaging in or allowing harassment based on age
  • In states or municipalities that prohibit discrimination against employees of any age, additional examples of age discrimination include, but are not limited to:
  • Not interviewing or hiring someone because they are viewed as “too young” to fit in with the company’s culture or other employees
  • Advertising for a “mature, older” worker
  • Not hiring younger workers because it’s assumed they will quickly move on to another job
  • Paying for training for older employees but requiring younger employees to pay for the same training out-of-pocket
  • Not providing training to younger employees because “it’s not worth it”
  • Turning down younger workers for promotions or assignments and giving them to less qualified older workers because the younger worker “hasn’t earned it yet” or “still has plenty of time” to receive other promotions or assignments
  • Giving unfair discipline or harsher criticism to younger employees than that given to older employees
  • Deeming younger workers’ reasons or need for requesting time off as less “worthy” than older workers’ requests for time off

Filing a Charge of Discrimination

An employee who believes that they have been discriminated against because of their age cannot go straight to filing a lawsuit against their employer in court. Instead, the employee must first file a Charge of Discrimination with the federal Equal Employment Opportunity Commission (EEOC) or with their state (and sometimes local) counterparts, called Fair Employment Practice Agencies (FEPA). A Charge of Discrimination is a signed statement alleging that the employee or applicant was discriminated against or harassed by an employer or its employees because of their age. If the employee is worried about revealing their identity, the law permits another person to file an EEOC Charge of Discrimination on their behalf. Charges of Discrimination can be filled with the EEOC online through its public portal after submitting an online inquiry and being interviewed by EEOC staff.

In states that have their own anti-discrimination laws and a FEPA agency responsible for enforcing those laws, an individual can file a Charge of Discrimination with their state FEPA which will automatically be deemed as “dual-filed” with the EEOC if federal laws apply to the type of discrimination alleged. An individual does not need to file a Charge of Discrimination with both agencies.

Filing a timely Charge of Discrimination is a statutory prerequisite to bringing an age discrimination lawsuit. If an employee files an age discrimination lawsuit in court without first filing a Charge of Discrimination with the EEOC or the appropriate state FEMA, the lawsuit will most likely be quickly dismissed based on the employee’s failure to file a Charge of Discrimination before filing suit.

It is also imperative that the employee’s Charge of Discrimination be timely filed as there are specific deadlines that must be met in order to successfully file a Charge. Specifically, under federal law, an individual has 180 calendar days from the day the alleged discriminatory act or conduct took place to file a Charge of Discrimination based on those acts or conduct. This deadline is extended from 180 days to 300 days in states where there is a state law that bans age discrimination and a state FEPA that enforces the law. Unlike discrimination based on other protected characteristics, the deadline is not extended from 180 days to 300 days if only a local law (and not a state law) prohibits age discrimination.

If more than one discriminatory event took place, the deadline usually applies separately to each event. For example, if an employee was discriminatorily demoted because of her age and then over a year later was fired also because of her age, and the next day files a charge of discrimination, only the claim of discriminatory discharge will be timely because the employee did not file a charge based on the demotion within 180 (or 300 if applicable) days of the demotion occurring. The exception to this rule is for claims of ongoing harassment which must be filed within 180/300 days of the last incident of harassment.

Age discrimination continues to be a problem in the workplace despite longstanding federal regulations that specifically prohibit this form of unlawful discrimination, as well as similar anti-discrimination counterparts enacted at the state and local levels throughout the country. Studies show that older workers are healthier and living longer than their predecessors, are more educated, and, often by necessity, are staying in the workforce longer than previous generations. Yet outdated stereotypes and assumptions about older workers and their professional abilities continue to persist despite research proving time and again that age does not predict overall ability or performance, causing harm not only to older workers and applicants but also to a discriminating company’s bottom line.

To turn this tide, employees must be aware of their rights and how to enforce them and employers must become more cognizant of the significant detrimental effects of age discrimination. Employers must conscientiously assess their policies, practices, and workplace culture, and make changes where needed, in order to create and maintain a workplace culture that embraces diversity and inclusivity and prohibits unlawful discrimination of any kind. Doing this will benefit not just older employees but also the workforce as a whole. It will help companies thrive by creating a healthier, more inclusive workplace culture, generating happier and more productive employees, and preventing costly EEOC charges or lawsuits, which ultimately will lead to a better, more productive work environment for all.

About the author: Marci Britt is an attorney at Cotney Construction Law who practices primarily in labor and employment law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA, FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

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