Do I Need an Attorney if I am the Victim of Age Bias?

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 Do I Need a Lawyer if I'm a Victim of Age Bias?

The Age Discrimination in Employment Act (ADEA) and various state statutes prohibit age discrimination. If you have experienced age discrimination while working or looking for work, your first action should be to consult with a lawyer.

An experienced employment attorney can evaluate your circumstances and advise you on whether the employer’s actions are legal. Furthermore, because some states’ age prejudice statutes provide higher protections than ADEA, a lawyer can advise you whether to file your complaint under federal or state law.

What Constitutes Workplace Age Discrimination?

The federal Age Discrimination in Employment Act bars companies from discriminating against workers over the age of 40. This means that businesses may not make employment decisions based on a person’s age if the person is 40 or older.

Courts have interpreted the phrase “because of” to mean that an employee must demonstrate that age was the “reason” for the employer’s actions. Alternatively, “but for” the person’s age, the company would not have made the decision it did.

The law prohibits discrimination in employment decisions based on age, including:

  • Discrimination in hiring, or refusing to hire a person because of their age;
  • Discrimination in promotions, or failing to promote a person because of their age; and
  • Wage and salary discrimination; paying employees differently based on their age

An employer may reduce benefits based on age only if the cost of giving the lower benefits to older workers equals the cost of providing full benefits to younger workers.

Mandatory retirement has been prohibited since 1986, with phased abolition beginning in 1993 for tenured personnel such as college professors.

Age-based mandatory retirement is still permissible for executives above the age of 65 or in positions of considerable policy-making authority.

Many states’ laws make age discrimination illegal as well. Victims of age discrimination may be eligible for monetary compensation for their losses as well as employment reinstatement.

Who Is Affected by the ADEA?

The federal government enacted the Age Discrimination in Employment Act in 1967. It is applicable to private employers with a minimum of 20 employees. It also applies to local and state governments. A significantly modified version of the statute also applies to federal government personnel.

Since 1986, it has barred mandatory retirement in most areas of the economy; since 1993, it has phased out mandatory retirement for certain tenured workers, i.e., those assured lifetime employment.

The ADEA protects workers over the age of 40. Some states have adopted anti-age discrimination laws that apply to workers under the age of 40.

How is Age Discrimination Established?

To prove age discrimination at work, a person must produce evidence at trial that an employer made employment decisions based on the person’s age and that the person was 40 or older.

Age discrimination can be proven in two ways. One is to demonstrate “dissimilar treatment.”

Disparate treatment occurs when an employer treats a person differently than other employees due to age differences. Disparate treatment is a form of discrimination that is done on purpose.

The alternative option is to demonstrate that an employer’s activities disparately impact its employees due to their age.

A person wishing to prove age discrimination in the workplace must submit witness testimony, records, and even expert witness testimony to demonstrate the employer’s decisions, the reasons behind them, and their impact.

How is the Disparate Treatment Theory Used to Prove Claims?

A person must be 40 or older and qualified for their work in order to flourish with a differential treatment method. Furthermore, the individual must demonstrate that they were subjected to an adverse employment judgment and that those under the age of 40 in the same job were not treated equally.

Demotion, termination, or a change in employment terms, circumstances, or privileges are examples of adverse actions. The victim of such activities would have to demonstrate that the adverse action occurred as a result of circumstances implying age discrimination.

Such facts could include the fact that the employee was fired and replaced by someone much younger.
Once a person establishes these criteria, the burden shifts on the defendant employer to demonstrate that the action was not motivated by age discrimination. If the employer meets that standard, the plaintiff victim of discrimination must demonstrate that the employer’s “legitimate cause” is merely a pretext and not the underlying reason.

An employer might defend their action by demonstrating a weakness in the employee’s job performance, such as:

  • Poor job performance.
  • Tardiness.
  • Failure to comply with legal employer instructions.
  • Failure to reach specific job goals.
  • Commission of a major violation of workplace norms.

How Do I Complain About Age Discrimination?

If a person believes they have been subjected to age discrimination, they must file a Charge of Discrimination with the federal Equal Employment Opportunity Commission (EEOC). This is the initial step before initiating a case against the employer in court. A Charge of Discrimination requests that the EEOC take action to correct the problem.

The EEOC has an online tool that can be used to establish whether a person is eligible to submit a charge. If the online assessment tool determines that a person is eligible to submit a charge, the individual must then complete an intake form to begin the EEOC charge procedure.

Keep in mind that completing the intake form does not imply filing a Charge. The intake questionnaire only provides the EEOC with the information needed to analyze the case and determine whether the person’s position is remediable under federal law.

The intake questionnaire is available for download on the EEOC’s website. The questionnaire contains information about filing a Charge of Discrimination and instructions for completing it.

It is preferable to respond quickly to a complaint of age discrimination. A Charge of Offense must be filed within 180 calendar days of the day the discrimination occurred.

Suppose there is a state legislation prohibiting age discrimination in employment and a state agency or authority that enforces the state law. In that case, the filing date is increased from 180 calendar days to 300 days. If just a municipal statute outlaws age discrimination but there is no state agency or authority to implement the state legislation, the deadline is not extended.

Within 45 days, federal employees and job applicants must contact an agency EEO counselor. For filing age discrimination complaints, federal employees and candidates follow a slightly different procedure.

An individual’s attempt to address an age discrimination complaint through the employer’s internal system or a union grievance procedure does not prolong the deadline for filing an EEOC Charge. A person who wishes to pursue action through these alternative routes must do so concurrently with filing an EEOC Charge.

A person must then wait for the outcome of the EEOC inquiry before filing a complaint in federal court against the offending employer.

Do I Need the Services of an Age Discrimination Lawyer?

If you suspect you have been the victim of age discrimination at work, you should immediately contact an experienced discrimination lawyer. Filing a Charge with the EEOC can be a difficult process.

An expert lawyer can assist you in completing the EEOC’s tool and questionnaire. Alternatively, the lawyer may be able to advise you on whether it is preferable to proceed under state law.

The type of evidence that may be required to prove a discrimination claim could include statistical analysis. You are more likely to achieve a favorable outcome if you have an experienced age discrimination lawyer on your side.

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