Age Discrimination

Employers can be sued on all kinds of discrimination claims, one of which is age discrimination. As a general rule of thumb, age discrimination can become an issue with any worker who is 40 years of age or older.

The principal body of law that protects workers and job applicants on age discrimination claims is federal legislation known as the Age Discrimination in Employment Act ("ADEA"). The ADEA protects anyone who is 40 years of age or older from employment discrimination based on age. The protections of the act apply both to employees and job applicants. The ADEA makes it unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment. This includes hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

EEOC Jurisdiction

If an employee believes that he or she has been discriminated against when applying for a job or while on the job because of age or any other protected category of disability, the employee may file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").

The EEOC is a federal administrative agency that has primary responsibility for overseeing discrimination claims. But in states or localities where there are anti-discrimination laws that authorize their own agencies to grant or seek relief, charges by employees living in these areas must first be presented to the appropriate state or local agency. In California, for example, the state agency handling discrimination claims is the Department of Fair Employment and Housing.

The administrative process usually requires that an employee must file a claim with the EEOC or the appropriate local agency before going to court. Once the agency receives a complaint from an employee, it will investigate the matter by contacting the employer. If the EEOC approves the claim, it may order the employer to cease the discrimination, award back pay or require them to rehire or promote the employee.

The good news is that the EEOC declines to take any action with respect to most discrimination claims that are filed. The bad news, though, is that the filing of an EEOC claim may very well be a signal that a lawsuit is coming down the pike in short order. So it's important to treat the claims process seriously. At a minimum, you may be able to use the process to assess the strengths and weaknesses of the employee's case, and then interact with the investigator or the employee's attorney to try to convince them early on that the claim has no merit, or to work out a favorable settlement.

The fact that the EEOC declines to take action on most claims is not necessarily a reflection that the claims have no merit. Instead, it is because the EEOC cannot possibly handle the huge volume of complaints they receive. So the Commission tends to investigate and pursue only those claims that are perceived to be egregious or clearly in violation of federal discrimination policies. Perhaps in recognition that many employees would rather pursue their own lawsuits, the EEOC will issue in most cases what has come to be called a "right to sue" letter. Once this letter is issued, the employee can proceed to court.

To an employer's benefit, there are strict time frames in which charges of employment discrimination must be filed. To preserve the ability of EEOC to act, and to protect the coveted right to file a private lawsuit, an employee usually needs to file a claim within 180 days of the alleged discriminatory act. This deadline may be extended to 300 days after the alleged discriminatory act, or 30 days after receiving notice that the state or local agency has terminated its processing of the charge, whichever is earlier.

Private Lawsuits

Lawyers representing employees like nothing better than good discrimination claims. In view of the huge jury verdicts awarded in favor of employees on sexual harassment, age discrimination and other similar claims, lawyers will usually take these cases on a contingency fee basis. As further incentives, punitive damages are available, and lawyers may also be able to recover their fees and costs in addition to damages awarded. And once an employee has established that he or she is over 40 and qualified for a particular job that was given to someone under 40, the burden shifts to the employer to prove there was a legitimate business reason for the decision.

Once an employee hires a lawyer, that lawyer is not going to want to walk away from the case without being paid or collecting a fee. So once a claim gets past the EEOC, the legal process starts to snowball and can quickly take on a life of its own. This means that you shouldn't necessarily wait to receive notices of EEOC claims before doing anything about possible discrimination complaints, which should not come as complete surprises in most instances. Of first importance would be to consult with legal counsel in order to develop a strategy for investigating and responding to the claim in a manner that is most likely to lessen your potential liability exposure.

Settlement and Severance Issues

It's common for employers who offer severance packages or early retirement options to require that employees, in return, sign away their rights to sue. In general, an employer would have to show the following in order to make a settlement on an ADEA claim enforceable:

• Any release or waiver of claims must be easy to understand.
• It must specifically mention the ADEA, so the employee know exactly what types of claim is being given up.
• The employee must get something extra in return for signing it - better-than-usual severance pay, for example. It can't just promise to give the employee what he or she would receive under a standard severance package.
• The waiver can't require a worker to relinquish rights regarding claims that arise after his or her job ends.
• The release must advise the employee - in writing - to talk to an attorney before signing it.
• The employee has to be given at least 21 days to sign it and has seven days after signing it to revoke it.

If a group of people is being laid off at the same time, the waiver requires even more company information. Employers must give employees 45 days to consider the agreement and disclose the job titles and ages of every person who's getting cut as well as everyone who still has a job.

In some cases where employers fail to follow these guidelines, employees may be able to sign a release or a waiver, take the severance pay and then sue anyway.

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