Battling Age Discrimination

There are many reasons why you may lose your job. A bad economy may force your employer to lay off workers or reduce its work force in an effort to save money. Maybe your employer is no longer going to make or sell a particular product. There are hundreds of legitimate reasons why you may lose your job.

Unfortunately, sometimes employees lose their jobs for unlawful reasons, like work-related discrimination. It can take all kinds of shapes and form; race- and gender-based discrimination are common. Discrimination may also be based on age.

Why would your employer want to let you go because of your age? There's any number of reasons, but maybe it wants to hire younger, less experienced workers who will do the job for less money than you make. Regardless of the reason, if you know what age discrimination is and what makes it illegal, you may be able to protect yourself and maybe even your job.

Some Basics

The Age Discrimination in Employment Act (ADEA) is the federal law that makes age discrimination illegal. It applies to workers who are at least 40 years old and to employers with at least 20 employees. Many states have similar age discrimination laws, and they can be more stringent than the ADEA. For example, the law in your state may apply to employers with less than 20 workers.

The ADEA simply makes it unlawful for your employer to make job-related decisions based on your age. So, you can't be fired or laid off because of your age. There are some exceptions, though. Your employer can make some decisions based on age:

• A reasonable factor other than age (RFOA) may allow your employer to treat you differently than a younger worker. For example, if the younger worker has education or training that you don't, your employer may be justified in terminating your employment and keeping the younger worker
• A bona fide occupational qualification (BFOQ) is when it's necessary to treat workers differently based upon their ages because older workers can't do the job safely. For example, if a 60-year-old worker can't continue to safely operate machinery, she may be laid off in favor of a younger worker

Think ADEA before You Leave

Does your employer have a severance plan or policy? If so, it probably requires you to sign a waiver and agree not to sue your employer in exchange for the severance pay and other benefits. The ADEA has very specific rules about these waivers. In order for it to be valid, it must, among others things:

• Be easy for you to read and understand
• Specifically mention that you're waiving your right to file a lawsuit under the ADEA
• Advise you to talk to an attorney before you sign it
• Give you 21 days to consider it and at least seven days to revoke it, if you've signed and accepted it (you get 45 days if you and a group of employees are laid off at the same time)

If the waiver doesn't follow all of the ADEA rules, it's invalid and you're free to sue your employer if you think it violated the ADEA.

ADEA in Action

If you think you've been fired or laid off improperly because of your age, then you can file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Fair Employment Practices Agency (FEPA) in your state. Usually this has to be done before you can hire an attorney and file a lawsuit. The EEOC or FEPA will investigate your complaint and then either:

• File a lawsuit against your employer for you
• Give you permission to file a lawsuit against the employer, called a right to sue letter
• Dismiss the complaint, if it finds no wrongdoing

If your lawsuit is successful, you could be awarded any number of things, including:

• Back pay, which is the salary and other benefits you would have been paid if you hadn't been discriminated against
• Reinstatement, meaning you'd have to be rehired
• Your court costs and attorney's fees

Remember, though, that your time may be limited. If you've been given 21 days to consider a severance package, then you need to file a complaint with the EEOC or FEPA as soon as possible and talk to your attorney. That's because neither agency is likely to get to your complaint within the 21-day period, and so you may be forced to reject the severance package or sign the waiver. Talking to a labor and employment attorney early will help you avoid this.

Questions for Your Attorney

• Can you represent me and a few of my co-workers in an ADEA suit against our former employer?
• My employer just reduced its work force by 10 workers, including me. Oddly, seven us are all 39 years old. The other three are in their 50's, and they told us that the ADEA doesn't apply to us. So, an employer can get around the ADEA by firing workers before they turn 40?
• I think I was laid off just to make room for a younger worker. My employer only has 15 employees, so the ADEA doesn't apply. Do we have a state law like the ADEA that covers my employer? If not, do I have any other options?

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