By: Roger Braddock
Age discrimination is one of the
fastest growing fields of law. In 1999, the EEOC
(Equal Employment Opportunity Commission) received 14,141 claims of
By 2003, this number had grown to
19,124 though it had slipped from its all time high in 2002 of
19,921 claims received.
While the overall number of claims
has risen, the number of age discrimination claims often keeps up
with general economic conditions and employment layoffs. It is
normal that when layoffs occur, discrimination claims go up, some of
which are legitimate and some of which are not.
This growth is also attributable to
the increasing number of aging employees in the workplace, along
with new laws and the application of those laws.
ADEA Federal Law
Under the Federal law, known as the
Age Discrimination in Employment Act, or ADEA, employers may not
discriminate against employees in hiring, firing, or other terms and
conditions of employment if they are 40 years of age or older.
Minnesota has its own parallel age discrimination law, which does
not have any specific age restriction.
The Age Discrimination in
Employment Act of 1967 ("ADEA") applies to employers with
20 or more employees and prohibits age discrimination against
employees 40 years of age or older. Age 39 does not get you an
age discrimination claim. Nor does the act apply to you if you
work for a company with 5 employees.
A person who is unlawfully
discriminated against because of age is entitled to damages,
including loss of income, emotional distress, and attorney's fees.
Additionally, a judge may double the damage award under Federal law
or even award triple damages under state law.
Age discrimination cases are
difficult to pursue and hard to prove. To prevail, an employee must
show that adverse action was taken because of age.
By adverse action, this can mean a
couple of things including termination, passing over the employee
for a promotion because of their age, lack of or a reduced raise or
cost of living adjustment, based on age, or any other action that
would be considered negative in the workplace when age was
considered a criteria. This could even include the assignment
of certain clients or leads.
Sometimes, this can be shown by
direct evidence of differential treatment based upon age. Obviously,
this would include an admission on the part of the employer that
"you are too old", or, "we'd prefer to see someone
younger start this job." Such overt statements however,
are rare and when they are made, they are rarely made in public
and/or admitted to.
Sometimes the discrimination is put
on the backs of someone else, "The client would like to see a
fresher face on this one", or "We need someone that can
connect with a younger market."
In most cases, however, direct
proof is not readily available and circumstantial evidence must be
Merely replacing an older employee
with a younger person does not establish age discrimination.
Similarly, it is not necessarily illegal to replace an old employee
with a high salary with a younger person earning a lower salary. An
employer is liable for age discrimination only if the employee is
able to prove that there was an intentional action because of age.
Proving Age Discrimination - Not
An Easy Task
Age discrimination is often hard to
prove in small firms of 20 or more employees unless there is some incontrovertible
evidence that the employer acted because of age. Few employers
would admit such an intent and the dismissal of one or two senior
employees is not evidence that age discrimination has
In most cases, the case for age
discrimination must be assembled from circumstantial facts across a
group of people. An extreme example would be if a company of
5000 employees had none that were over age 45, or terminated
everyone over age 50 and replaced them with substantially younger
persons, or older employees on average received substantially less
income or fewer raises than did their younger counterparts.
You do not have to be fired to be
the victim of age discrimination either. Rather than fire
older workers, companies with an agenda to "get younger"
will simply try to get older workers to quit and then replace them
with younger people.
Bottom line though is that
regardless of the actual employer's type of action, putting together
an age discrimination claim can take time and loads of research and
If your efforts show only a very
slight variation in the way older workers are treated, it probably
won't be substantial enough. If for instance, employees under
age 55 received an average of a 5.2% wage increase and workers over
age 55 only received an average of 5.0%, your case could be hard to
prove. You can draw a line at any age and say that people on
one side have slightly different statistics than those on the other
Age discrimination laws are not in
place to make everything equal. They are however, very
effective at making sure that there is not an employer agenda that
discriminates against any employee or group of employees, based on
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