CAN I SUE MY EMPLOYER FOR AGE DISCRIMINATION?

Age discrimination, like discrimination based on race, religion, or gender, is prohibited by law. However, age is treated differently that other protected characteristics. This is because every worker will get older, and with age additional safety and health concerns are statistically more likely to develop. It is important to understand what remedies are available for age discrimination and which pathway is best for each victim of such discrimination. Below is a brief overview of age discrimination lawsuits.

Age Discrimination In Employment Act     

Title 29, Chapter 14 of the United States Code is known as the Age Discrimination in Employment Act (“ADEA”). This law functions very similarly to Title VII, which handles discrimination based upon race, religion, or gender. However, because ADEA is a separate act, it does contain some important differences. ADEA applies to employers with at least 20 employees and only to employees age 40 or older. Both Congress and the Supreme Court have recognized that age, unlike characteristics protected under Title VII, commonly does correlate to an individual’s ability to perform certain jobs. For this reason, ADEA claims do not recognize “mixed motive” cases—case in which an adverse employment action is taken due to age and another permissible reason. Instead, a plaintiff in an ADEA claim must prove that age was the sole reason for the action and that any other claimed reasons are simply pretext or lies. A related defense exists for policies that are based on reasonable factors other than age, even when these factors have a clear harsher impact on employees over 40. Finally, certain government employers may set age limits so long as they are rationally related to job performance. Common examples include firefighters and police officers being removed from certain duties at specific ages.

When an employee feels he or she has been discriminated against, the first step is to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). This is the same body that handles Title VII discrimination claims and that same strict time limit applies to filings: it must be within 180 days of the discriminatory action. After filing a charge, the EEOC will investigate the claim until the victim requests documentation to allow filing a lawsuit in court. This filing must be done very quickly to prevent the statute of limitations from running on the claims of discrimination.

Direct Discrimination

Once the employee has filed a claim in court, the plaintiff must prove that they were victims of either direct or indirect discrimination. Direct discrimination is either individualized action taken towards the plaintiff because of age or systemic discrimination directed towards all older employees. In individualized cases, the plaintiff shows that she suffered an adverse employment action, such as a demotion, firing, or denial of a promotion, because of her age. The employer can offer a legitimate, non-discriminatory reason for the action. The plaintiff must prove to the jury that the decision was solely motivated by the plaintiff’s age to prevail.

Systemic discrimination is wide-spread and executed through a written policy or a pattern or practice of impermissible treatment of employees over 40. Once the employee identifies a specific discriminatory policy, pattern, or practice, the employer can defend itself by proving that the policy or practice is based upon a reasonable factor other than age. These can commonly include health and safety factors. For example, an employer would be entitled to enact a written policy capping vacation time, even though older employees are more likely to have built up such time through longer tenure. It is up to the employer to prove that the policy, pattern, or practice is in fact based on a reasonable factor other than age.

Indirect Discrimination

Neutral policies that have a negative impact on older employees can also be the basis of employment discrimination claims. A plaintiff identifies a seemingly neutral policy that has a greater impact on employees over 40, and the employer may prove that the policy is both job related and a business necessity, or based on a reasonable factor other than age. As the Supreme Court noted in Smith v. City of Jackson, this is a tall order: many policies that will have disproportionate effects on older workers will also be supported by these justifications.

Kansas Age Discrimination in Employment Act

Kansas offers a state law “sister statute” to ADEA. This act also applies to employees 40 or older, and follows the same condensed timeline concerning administrative and court filings as ADEA. This statute also recognizes both direct and indirect discrimination, outlawing both. An important distinction and benefit of the Kansas Act is its ability to apply to State employees. The United State Supreme Court held in Kimel v. Florida Board of Regents that unlike Title VII, ADEA could not be forced upon state government employees. Thus, the only protection offered to a Kansas state government employee are those offered by the Kansas Age Discrimination in Employment Act.

Age discrimination is a much thornier area than racial, religious, or gender discrimination. Everyone ages. And aging is logically and scientifically connected to legitimate concerns of employers, such as the ability to safely perform assigned tasks and higher salaries. Thus, age discrimination law is much more favorable to employers. This makes it even more important to contact experienced legal counsel when age discrimination is suspected. Knowing the key differences between age discrimination and other discrimination make it harder to distinguish permissible employer policies from illegal ones.


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