As the death toll continues to rise due to the COVID-19 pandemic, and with various states, particularly New York, continuing to implement various safeguards and lockdown precautions, many people continue to remain unemployed and are looking for work. With so much uneasiness in the job market these days, good jobs are hard to come by and those with existing jobs are doing everything they can to keep the ones they have. This is especially relevant for older people in the workforce. Although they may be experienced, older employees are more likely to be terminated, and if they are, they face a difficult time having to start from scratch when they have to look for a new job. Accordingly, keeping one’s job is paramount.
Unfortunately, employers do not always agree with the older employees and may see their age more as a hindrance than an added benefit to their organization. Luckily, age discrimination against an employee or potential employee is against federal law and is specifically prohibited by the New York statute.
According to a 2018 survey from the American Association of Retired Persons (AARP), about three in five older employees have experienced some form of age discrimination in the workplace. In fact, one in four workers aged 45 and older have been the victim of negative comments about their age from supervisors. 76 percent of these older employees see age discrimination as a very serious obstacle to seeking new employment.
This article shall address the Age Discrimination in Employment Act of 1967 (AEDA), talk about what age discrimination is, and the importance of hiring an age discrimination lawyer if one finds themselves in a situation where they may be discriminated against based upon their age.
Signed into law by President Lyndon B. Johnson in 1967, the Age Discrimination in Employment Act of 1967 is a federal law that prohibits age discrimination against anyone who is at least 40 or older. The ADEA only applies to those employers who regularly employ at least twenty employees. The ADEA specifically prohibits against:
An exception to the ADEA is mandatory retirement for those executives aged 65 and older who are entitled to a pension and are high ranking corporate officers.
Being discriminated against due to your age may come in many different forms. Two of the most common types of age discrimination are direct age discrimination and indirect age discrimination.
Direct age discrimination is when your employer treats you worse than another employee in a similar situation due to your age. Some direct age discrimination examples would be if your employer refuses to allow you to participate in training because of your age, but allows younger employees to do the same training.
Or, another example would be if the employer promotes a younger employer despite the fact that the younger employer has the same qualifications, title, and experience as the older employee.
In both examples, the employer is treating one group differently from another group due to their age, despite the fact that all other circumstances are the same.
However, there are circumstances where direct age discrimination is not prohibited. If the employer can show that there is a good reason for the discrimination, then such discrimination is then not illegal. Rather, it is objective justification.
For example, if a person under 18 years of age applies for a job on a construction site, the company may refuse to hire that person because accident statistics indicate that it can be dangerous for anybody under 18 to work in such an environment.
Since direct discrimination may not be easy to spot or if there is an objective justification defense, it is best to consult with an experienced discrimination lawyer to advise you of your rights and analyze the facts.
Indirect discrimination is when an employer has a particular company policy that puts people of a certain age group at a disadvantage. Some indirect age discrimination examples would be if you are aged 23 and you find you are not eligible to be promoted because of the company policy whereby only employees with graduate degrees can be promoted. Although this applies to all employees, it indirectly disadvantages people of a certain age group because they are less likely to have that qualification of having a graduate degree.
Another example would be if a chiropractor allows its patients to pay for their sessions in installments instead of all at once, but only if the patients are employed. This may indirectly discriminate against older people, who are less likely to be employed.
As with direct age discrimination, indirect age discrimination can be permitted where there is an objective justification, or if the employer can show that there is a good rationale for the company policy.
Like direct discrimination, it is important to consult with an experienced employment attorney to analyze the facts and to determine just how strong an objective justification defense there is.
According to the AARP, here are seven real-life age discrimination examples against older workers.
Please keep in mind that there may be other examples of discrimination not mentioned above. Accordingly, it is best to consult with an experienced employment law attorney to see if your scenario may be a sign of age discrimination.
Age discrimination is not exclusive to just older workers. Younger workers are also discriminated against and the AEDA is also designed to protect younger workers as well. Here are some real-life examples of ageism against youth.
Since age discrimination may take many forms, regardless of whether it’s toward older or younger workers, it is best to consult with an experienced employment law firm to see if your individual scenario may be a sign of age discrimination.
Age discrimination may be difficult to spot. Below are some of the more common signs of age discrimination.
An obvious sign of age discrimination is a blatant insult regarding age. This often causes work-related stress and anxiety. Although the employer may mask it in the form of a joke, a repeat pattern may be indicative of a pattern of ageism.
If a pattern develops in which more and more younger employees are being hired, despite older applicants having the same or better qualifications, the employer may be engaging in age discrimination.
Even though an older employee may have more qualified than a younger employee, if the younger employee gets promoted to the manager instead of the older, that is a sure sign of age discrimination.
If the younger workers are given more challenging work assignments compared to the older workers, there is an assumption that the employer could be discriminating. Furthermore, younger workers are more likely to be promoted since they are given more challenging projects.
Oftentimes, the older worker will be socially segregated from the rest of the employees by the employer. If this happens, this is a sure sign of discrimination.
Even though the older worker may not be ready to retire, if the employer begins to insist or encourage forced retirement to the older worker, that may be age discrimination.
If the older workers are being laid off, but not the younger workers, that could be a true sign of age discrimination.
Termination toward the elderly is always an indication of discrimination.
If the employer seems to target an older worker and gives them a performance improvement plan, that could be a sign that the employer is first trying to single the older worker out with a plan, and then eventual termination.
If the employer is always picking on an older worker and giving them harsh criticism and discipline that may be construed as unreasonable, that may be a sign of age discrimination by the employer.
Since there may be other examples of age discrimination that may not be listed above, it is best to talk with age discrimination lawyers to see if your specific case may qualify.
Age discrimination in the workplace is more frequent than you may think. Below are some real-life examples of age discrimination of successful age discrimination cases.
IBM has had a long history of age discrimination amongst its employees, preferring its younger engineers and managers as their workers aged. The U.S. Equal Employment Opportunity Commission EEOC issued a decision concluding that the employer discriminated against thousands of its older employees so that they wouldn’t have to pay them retirement benefits. Specifically, it found that IBM had engaged in systematic age discrimination between 2013 and 2018 on the basis of their age when it laid off thousands of older workers in the United States.
In this landmark age discrimination case, the Plaintiff, Jack Gross, filed an age discrimination claim against his employer, FBL Financial Group, after he was demoted from his position as claims administration director. The significance of this case is that the Court held that employees have to prove that age was the deciding factor in the employer’s behavior. Prior to this case, employees only needed to prove only that age was a motivating factor in an action that harmed their employment. Accordingly, the Jack Gross case made it more difficult for plaintiffs to prove discrimination based on age.
In 2014, Kathryn Moon, age 68, and Julianne Taaffe, age 64, were both teachers who taught English as a second language at Ohio State University. After having taught for many years, both teachers retired from the university after feeling pressured by the university administration to quit. Feeling that the administration preferred the teaching assignments to be distributed to a younger faculty, the plaintiffs claimed that older teachers were often referred to by management as “millstones” and “deadwood.” The complaint stated that one boss even sent an email to a colleague which was eventually forwarded to staff members that compared the older staff to “herding hippos.” Eventually, both teachers won their suit against the University for violating the AEDA and were awarded back pay, benefits, and their teaching positions were reinstituted.
A New York building superintendent, who was over 70 years of age, kept getting pressure from management to resign or else he would be terminated. The employee emailed the supervisor back, “After 30 years working in the building you told me to choose either to be terminated or to resign. I strongly believe that your insistence on my resignation is based in fact on age discrimination and nothing else, as you have stated: ‘you are old.’” The employee was then terminated the next day, after which, the employee sued the employer for wrongful termination.
After establishing an attorney-client relationship with the Law Offices of Yuriy Moshes, he received a six figurement settlement from the employer.
On 10/20/11 the Philadelphia District Office of the equal employment opportunity commission alleged that the employee was not hired into the full-time position of airport associate due to the fact that he was 62 years of age. The employee was not rehired as the temporary line technician, which was retaliation by the employer for the employee making complaints about age discrimination. The case was eventually settled for $38,000.
Age discrimination involves treating an applicant or employee less favorably on the basis of age. The Age Discrimination in Employment Act (ADEA) only applies to those employees who are age 40 years or older.
Yes. Under existing statutes and case law of employment law, the employee must present evidence to show that the employer’s discrimination against the employee was based upon age as the deciding factor and that a hostile work environment existed.
With age, older employees often face the stigma that they are less qualified or productive than younger workers. They may face the stigma of being forgetful, not as intelligent, not as hardworking, and not being able to keep up with the technological demands of the employer or the position.
By demonstrating that a particular layoff done by the employer had “disparately impacted” older workers. This means that the older workers were statistically overrepresented in the layoff when compared to the younger workers.
Encourage management to do the following:
1. Acknowledge stereotyping and avoid making assumptions about the elderly.
2. Encourage training and promotional opportunities to all employees.
3. Be alert for social cues in the workplace.
When it comes to discrimination claims, age discrimination in the workplace is a very real employment law issue that is very frequent and commonplace. Oftentimes, an employer may try to mask the discrimination to avoid potential discrimination in the workplace lawsuit, or the discrimination may be subtle. Accordingly, it is important to talk with an experienced age discrimination lawyers who can discuss and analyze your age discrimination in the workplace and who is familiar with the Employment Act ADEA.
An attorney from the Law Office of Yuriy Moshes will have the expertise and legal knowledge to review any discrimination employment including younger workers and older workers. Their offices represent discriminated employees of age discrimination in employment in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx, and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.