“Aren’t You Too Old for that?” – Age Discrimination in the Workplace

He speaks to Lawyer Monthly about age discrimination and your rights if you have ever been told: “You are too old for this job.”

Can you briefly underline what accounts towards age discrimination?

Age discrimination occurs when an employer decides to suspend, demote, terminate, or fail to hire an employee because of a belief that he or she is too old (or in some cases, too young) to perform his or her job duties effectively.  Age discrimination can also take the form of a hostile work environment which can include “code words,” comments, or jokes that stereotype older workers, such as the employee is “past his prime”, “set in her ways”, “can’t teach an old dog new tricks”, or “lacking energy and enthusiasm.”     

State laws in the Northeast are generally more favorable to employees than the ADEA.

What laws protect employees in these instances?

The main federal law protecting employees over the age of 40 is the Age Discrimination in Employment Act (ADEA).  The ADEA provides an administrative remedy through the Equal Employment Opportunity Commission (EEOC) as well as the right to pursue a civil action in federal court.  Civil remedies include economic damages based on lost pay and benefits.  Successful claimants/litigants may also receive attorney’s fees.

State laws in the Northeast are generally more favorable to employees than the ADEA.  For example, in the State of New York, employees are protected by the New York State Human Rights Law (NYSHRL).  Under the NYSHRL, employees under the age of forty are protected as well, so it is possible to assert a “reverse” age discrimination case.  Further, successful litigants may also receive damages for emotional distress, as well as attorney’s fees.  These remedies are not available under the ADEA.

Age discrimination can be proven through direct or indirect evidence.

The Commonwealth of Pennsylvania’s state law against discrimination, the Pennsylvania Human Relations Act (PHRA), provides for emotional distress, attorney’s fees and civil penalties in some cases.

In the State of New Jersey, employees of any age may sue for age discrimination under the Law Against Discrimination (LAD).  The LAD also provides successful litigants with the full panoply of tort damages, including lost pay, emotional distress damages and punitive damages, along with attorneys’ fees which may be enhanced by the court.  Because these state laws provide additional remedies to age discrimination plaintiffs, many employees opt to pursue their claims under these laws rather than the ADEA.

Other cases can rely on statistics showing that the employer regularly fires a disproportionate number of older employees while retaining younger ones.

How can you prove age discrimination in the workplace?

Age discrimination can be proven through direct or indirect evidence.  Direct evidence includes written or oral comments which stereotype workers because of their age.  Examples of ageist comments include “you are too old (or young) for this job”, “you can’t teach an old dog new tricks”, or “when are you going to retire.”  Because it is rare for an employer to make such blatantly ageist comments, employees more commonly use indirect or circumstantial evidence.  Indirect evidence takes many forms.  Sometimes employers will reveal an implicit bias against older employees by using “code words” for ageism. For example, an employer may state, on a performance review of an older employee, that the employee is “resistant to change” or “lacking vision” or otherwise criticize the employee’s energy level, enthusiasm or work ethic.  Courts have recognized that these “code words” can mask age discrimination.  In other cases, employers may repeatedly ask an employee when he or she will retire, even after the employee states that they have no intention to retire.  Other cases can rely on statistics showing that the employer regularly fires a disproportionate number of older employees while retaining younger ones.

An employee can also prove a case of age discrimination by showing that the employer’s stated reason for taking an adverse action against him or her was false and that the true motivation was age.  For instance, if an employer terminates an older employee for poor job performance, the employee can rebut that reason by providing positive performance appraisals.  However, the employee must also come forward with additional evidence, either direct or indirect, that his or her age was the motivating factor.  It is not enough to show that the employer’s reason was incorrect or unfair.

With respect to outcomes, age discrimination cases have outcomes similar to other types of discrimination claims.

If you choose to sue for age discrimination, what is the process like and what are the usual outcomes?

The litigation process for age discrimination cases largely depends on the venue in which the case is initiated.  In federal court, litigants can expect a fast start to the case, a shortened discovery process, and aggressive case management by the court.  However, once the case reaches the summary judgment stage, it may take many months or even years for the court to decide whether the case reaches a jury.  In state court, litigants and their attorneys will have longer discovery periods and less case management.  However, busy state court dockets mean that some cases take years to reach trial.

With respect to outcomes, age discrimination cases have outcomes similar to other types of discrimination claims.  The vast majority of claims are resolved by either settlement or dismissal before they go to trial.  Early settlements are encouraged by both federal and state court systems, some of which have mandatory mediation programs for employment discrimination claims.

I would like to see the ADEA amended to remove the age 40 requirement, so that younger employees who experience discrimination based on age may also seek a federal remedy.

How does age discrimination cases compare to other forms of discrimination? For e.g. Is it often dismissed as ‘less important’, etc.?

From the perspective of a plaintiff’s employment lawyer, age discrimination claims are just as important as other types of discrimination claims.  While these cases often lack the shocking fact patterns of, for example, sexual harassment cases, the stakes for the victims of age discrimination are just as high.  Imagine that you are five years from retirement and you are relying on those last five years to build up your pension.  Suddenly, you are fired due to age discrimination.  In an instant, your entire future is thrown into chaos.  Who will hire you now that you are 55 or 60 years old?  How will you survive the next few years and make it into retirement?  The eradication of age discrimination is an important societal goal and one that we, as employment attorneys, take very seriously.

Do you think there is room for reformation and change in this area?

I would like to see the ADEA amended to remove the age 40 requirement, so that younger employees who experience discrimination based on age may also seek a federal remedy.

Steven Siegler

www.newyorkcitydiscriminationlawyer.com

Steven Siegler is an experienced New York City, New Jersey and Pennsylvania employment attorney at Phillips & Associates. Many of the matters that he handles relate to discrimination on the basis of traits such as race, gender, age, and disabilities, while he also handles issues related to severance packages and executive compensation.