Labor and Employment

Age Discrimination

There are a variety of federal laws protecting employees and job applicants from employment discrimination. Keep in mind that these laws also apply to employment agencies and labor unions.

If you've been discriminated against, you may be able to recover back pay, reinstatement, future pay or future pay changes, a reasonable accommodation or other relief. In addition, if you were not hired the employer may be required to hire you.

Age Discrimination in Employment Act of 1967 (ADEA)

The Age Discrimination in Employment Act of 1967 (ADEA) protects workers over age 40 from discrimination based on their age. The ADEA is administered by the Department of Labor's Equal Employment Opportunity Commission (EEOC), and applies to companies with at least 20 employees and covers both private and public employers.

The ADEA also protects employees from retaliation for asserting a claim of age discrimination or participating in a discrimination action or investigation. However, the ADEA applies only to employers with at least 20 employees. If the ADEA applies to your employer, age discrimination is also prohibited in any apprentice programs unless the employer has a waiver from the EEOC. The EEOC waiver is called a bona-fide occupational qualification or BFOQ. That having been said, it is not specifically illegal for an employer to ask for a job applicant's date of birth.

What To Do If You Think You've Been Discriminated Against

If you think that you've been discriminated against, in order to file a lawsuit in federal court, you must first exhaust other possible means for a remedy. What the EEOC will do is investigate the complaint and determine whether there is enough information for them to take additional action. Often, due to their volume of cases, they cannot adequately investigate every case, and they will issue a "right to sue letter." This letter is a prerequisite for filing a lawsuit in federal court. Remember that there are very strict time limits in EEOC actions and you must file an action with the EEOC within 180 days, and a federal court action within 90 days of the issuance of the right to sue letter. If you don't comply with both of these time restrictions, you will lose your rights forever.

Profiling a Legal Case

If you've believe that you've been discriminated against, you've gotten a right-to-sue letter and you thereafter file a lawsuit in federal court, you have the burden of proving that you were treated differently than other employees as a result of being over 40 years of age. The employer is then required to show that it acted in a non-discriminatory manner, specifically that other people under 40 years of age did not receive preferential treatment. You will then be required to show that the employer's reasons for your alleged age discrimination were pretextual or a smokescreen in order to prevail. Recently, in Meacham v. Knolls Atomic Power Laboratory, the U.S. Supreme Court ruled that employers who take actions that have a disproportionate impact on older workers must show that those actions resulted from reasonable factors other than the employee's age. This actually shifts the burden of proof to the employer after the employer makes a preliminary showing of discrimination.

How a Lawyer Can Help

Employment law is a complicated area of the law and labor and employment lawyers have specialized knowledge that may help you if you need to file a claim or an action against an employer. Often, employees are not sure if they belong to a protected group and whether they may have been discriminated against. In addition, if you need want to file a lawsuit, you may be required to first seek relief from federal, state, and local agencies before you are permitted to take any court action. Talking with a labor and employment lawyer should give you the answers you need.

Questions for Your Attorney

  • Have I been discriminated against based on my age?
  • Will the ADEA protect me?
  • How can I proceed against my employer
  • Will I lose my job?
  • What remedies may I have?
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