Outten & Golden attorneys are experienced at evaluating age discrimination claims and negotiating or litigating our clients’ cases to maximize their recoveries. We advise clients about their alternatives and help them formulate strategies that will best protect their interests and minimize their costs.
The Age Discrimination in Employment Act (ADEA)
ADEA is the federal law that prohibits age discrimination. It covers employees who are 40 years old or older and employers with at least 20 employees. Many states have similar age discrimination laws, and they can have different coverage from the ADEA. For example, the law in your state may apply to employers with fewer than 20 workers.
The ADEA simply makes it unlawful for employers to treat an employee age 40 or older worse than her or his younger peers because of the employee’s age. It is not age discrimination simply to treat an older employee badly, however; the employer (through a manager or other decision-maker) must treat the employee badly because of the employee’s age. The employer may not make job-related decisions based on age. For example, older employees can’t be fired or laid off because of age.
Age discrimination can be subtle and can take many forms. The following are just a few examples of treatment that may indicate age discrimination:
- Refusing to hire anyone who is older than a certain age or appears older;
- Refusing to provide training or opportunities for promotion to older employees;
- Promoting a significantly younger employee over an older employee;
- Firing or laying off the oldest and highest salaried employees before other employees;
- Forcing older employees to retire;
- Asking about an employee’s retirement plans or suggesting to an employee that they should consider retirement;
- Making comments that suggest a preference for youth, like saying “we want a more energetic employee,” “we want young blood around here,” or “we have/want a youthful image at this company.”
The ADEA and state laws also prohibit employers from firing, demoting, harassing, or otherwise retaliating against an employee who complains about age discrimination. Complaining about discrimination could mean, for instance, speaking to a superior, filing a complaint with Human Resources, filing a charge with the Equal Employment Opportunity Commission, participating in a related legal proceeding, or any other type of conduct opposing discrimination. Even if the employee is wrong and the conduct is not illegal, the employee may be protected from retaliation if the complaint is based on a good faith belief that discrimination occurred. A retaliation claim is separate from an age discrimination claim. In other words, an employee need not prove that he or she was discriminated against in order to prove retaliation.
Older Workers Benefit Protection Act (OWBPA)
Older workers also have certain rights under the OWBPA, which amended the ADEA in 1990. Under the OWBPA, it is illegal for employers to exclude older employees from benefits offered to younger workers. Additionally, for employees who are 40 years old or older and are fired and asked to sign a waiver agreeing not to sue your employer in exchange for the severance pay and other benefits, the OWBPA has very specific provisions that the employer must follow. For example, in order for the waiver and release to be lawful, the employer must:
- Make the waiver and release clear and easy to read and understand;
- It must state, specifically, that the employee is waiving the right to file a claim or suit under the ADEA;
- It must advise the employee to consult with an attorney before signing it; and
- The employee must be given at least 21 days to consider it, and at least seven days to revoke it (if the employee has signed and accepted it). Each employee must be given 45 days to consider it, if a group of employees are laid off at the same time.
Individuals who believe they have experienced discrimination because of their age will find sensitive, skilled attorneys at Outten & Golden who are committed to advocating for victims of age discrimination. If you believe you are a victim of age discrimination, our lawyers can help you negotiate for an exit package or some other form of compensation, or we can represent you in litigation. Please keep in mind that most employment laws have short time limits for filing claims and, as a result, it is best to seek legal advice as soon as you can.
Contact Age Discrimination Lawyers
If you believe you have been subjected to age discrimination or retaliation, please contact the firm through the ”Contact Us" form or by calling us in the New York, San Francisco or Washington, DC office (see bottom of page for phone numbers) to begin the Outten & Golden intake process.