Age Bias in the Workplace

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 What Is Age Bias?

Age bias is discrimination against an individual based on their age. Ageism is an age-related bias that is typically harmful against:

  • Older individuals;
  • Individuals in their middle years;
  • Teenagers;
  • Kids.

In a workplace, age bias against older individuals is becoming more recognized. Deliberate age discrimination occurs when an individual is singled out and discriminated against due to their age.

Unintentional age discrimination may occur when there is a company-wide policy to cut benefits or downsize or when there is a dress code that encourages workers to look youthful.

What Is the Age Discrimination in Employment Act?

The Age Discrimination in Employment Act (ADEA) protects individuals over 40 years of age against age discrimination in the workplace. According to the ADEA, an employer cannot discriminate when firing, hiring, promoting, or recruiting workers based on their age.

The ADEA was enacted to protect workers from discrimination in the workplace. It is intended to put the employee in the same position they would have been had they not been discriminated against.

For example, if an employer pays a worker less based on their age, a court may award damages in the form of forcing the employer to pay the worker equally to other workers of different ages. In addition, a plaintiff may also be awarded back pay for the benefits and wages that they should have been paid.

What Is the Older Workers Benefit Protection Act?

The Older Workers Benefit Protection Act (OWBPA) prohibits an employer from using a worker’s age to consider their benefits and retirement. The OWBPA applies to workers over 40 years of age. It is intended to create equality between older and younger workers.

What Should I Do if I Have Been Subject to Age Bias?

If an individual has been a victim of age bias, there are remedies for age bias an individual may be able to obtain. First, a worker should use any internal dispute resolution processes that may be available at their employer, such as reaching out to their human resources department.

If the issue cannot be resolved, the victim should contact the Equal Employment Opportunity Commission (EEOC) as well as an attorney.

How Is the Equal Employment Opportunity Commission Involved?

The Equal Employment Opportunity Commission (EEOC) is an agency that enforces federal laws that cover workers from being discriminated against based on:

  • Age;
  • Race;
  • Color;
  • Religion;
  • Sex;
  • National origin;
  • Disability;
  • Genetic information.

A worker who has faced discrimination should file a claim with the EEOC. The EEOC will then review the claim, determine if discrimination occurred, and attempt to remedy the issue.

The EEOC will attempt to mediate between the employer and employee. It is important to note that, in contrast to other types of discrimination lawsuits, with an age discrimination lawsuit, the plaintiff does not need a Notice of Right to Sue in order to file a lawsuit.

In order for a plaintiff to sue their employer, the employee must have filed a claim with the EEOC. The plaintiff can file a lawsuit at any time after 60 days past the filing. However, the lawsuit cannot be filed later than 90 days after receiving notice that the EEOC’s investigation has concluded.

Claims related to employment may be complex and confusing. Because of this, it is important to consult with an attorney.
In some cases, the EEOC will file a lawsuit on the employee’s behalf. However, the employee will also have the right to file a lawsuit in state or federal court.

Typically, the EEOC mediates the majority of claims. It usually only litigates a small percentage of the charges filed.

What Are State Age Bias Laws?

There are many states that have passed their own age bias regulations and laws. Some of these offer more protections than federal laws.

For example, federal law restricts the amount of compensatory and punitive damages a plaintiff can recover. These limits may differ and are based on the size of the employer.

Some states, however, do not enforce the limits on recovery in employment discrimination cases. An employment lawyer can advise an individual regarding caps on compensatory or punitive damages in their state.

What Are Bona Fide Occupational Qualifications?

Although the Civil Rights Act of 1964 prohibits discrimination in employment methods, bona fide occupational qualifications (BFOQs) are an exception. A BFOQ is a characteristic that allows an employer to hire individuals based on their sex, age, religion, or national origin, only if they are reasonably required for that company or organization.

For example, a Catholic school may only hire teachers that are of the Catholic faith. Another example is if a menswear clothing company employs only male models to model the clothing line.

Are There Any Defenses an Employer Can Use?

One defense that an employer may be able to use against a claim of age discrimination is that the discharge or discipline of the worker was non-discriminatory and was for good cause. Another possible defense an employer may use against an age discrimination claim is a bona fide occupational qualification.

Bona fide occupational qualifications occur when the nature of a job requires certain candidates to be excluded from employment. For example, airlines have a required retirement age for pilots for safety reasons.

What may appear to be discrimination against a protected class of individuals is permitted when a bona fide occupational qualification exists. If the employer can show that the employment practice or policy is based on a reasonable factor other than the individual’s age, the policy will not be considered discriminatory.

For example, if a younger worker is paid more based on their higher education, it may be a defense against a claim of discrimination if an older worker is paid less.

How Can an Employer Use a Bona Fide Occupational Qualification as a Defense?

If an employer is charged with discriminatory hiring or employment practices, the employer may be able to use a bona fide occupational qualification as a defense. A court will review this type of defense very carefully and closely, as the employer must establish and confirm its validity.

Because BFOQs are so narrowly interpreted, an employer must be able to:

  • Authenticate a business necessity for the BFOQ;
  • Verify that the necessity is rational and can be confirmed;
  • Establish that the rationality stems from a substantial belief that all or almost all of the workers not in the class do not have the qualifications for the job; and
  • Indicate that this belief can either be confirmed or disproven with appropriate tests or that dealing with the entire excluded class would not be possible, as shown by expert testimony or widely accepted research and data.

Should I Consult a Lawyer?

If you believe you may have been the victim of age bias in the workplace, you should consult with a discrimination lawyer as soon as possible. Your lawyer can help you with anything related to your claim, including filing with your local agency, the EEOC, or any other necessary agencies.

If your local state agency will not act on your claim, your lawyer can help you move forward. Your attorney can advise you of your rights and the laws in your state, help you build the strongest case possible, and represent you throughout the legal claim process.

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