Do Not Let Age Be The Reason Your Career Stalls
We all face many issues as we get older, some more difficult than others. But workplace age discrimination shouldn’t be one of them. If you’ve been forced out of a lifelong career that you loved, or if you are being harassed at work because of your age, CONTACT MY FIRM, Mansour Law, LLC, online or call 610-936-6863 for a FREE CONSULTATION. My team is ready to help!
What Is Illegal Age Discrimination At Work?
Age discrimination at work happens when you are treated negatively by your employer because of your age. Examples of negative discriminatory actions include:
- Refusal to hire or promote
- Pay or benefit disparity
- Bullying or harassment
- Unwarranted discipline or job scrutiny
What Laws Prohibit Workplace Age Discrimination?
Age discrimination at work is prohibited by two laws: a federal law called the Age Discrimination in Employment Act of 1967 (ADEA) and a state law called the Pennsylvania Human Relations Act (PHRA). Some cities and towns, like Philadelphia and Allentown, have their own laws prohibiting age discrimination at work. The U.S. Equal Employment Opportunity Commission (EEOC) enforces the ADEA. The Pennsylvania Human Relations Commission (PHRC) enforces the PHRA.
All of these laws generally prohibit the same kind of discriminatory conduct in the workplace. The biggest difference between the laws is to which employers they apply. For example:
- The ADEA applies only to Pennsylvania employers with at least 20 employees
- The PHRA applies only to Pennsylvania employers with at least four employees.
- Local laws usually apply to employers with any number of employees within the town or city.
Chances are, your employer is covered by one of these laws. As a result, an experienced age discrimination lawyer will be able to determine which laws apply to your case.
Who Is Protected From Workplace Age Discrimination?
Only employees 40 years of age or older are protected from discrimination because of their age. That means that if you are under 40 years old, you cannot bring a claim for age discrimination, even if you were discriminated against because of your age. Under the PHRA, independent contractors at least 40 years of age are also protected from age discrimination. However, under the ADEA, independent contractors are not protected.
How Do You Prove Workplace Age Discrimination?
To prove workplace age discrimination, you must typically show that you:
- Are at least 40 years old
- Were qualified for the position you sought or held
- Suffered a negative employment action (e.g., termination, demotion, pay cut, etc.)
- Were replaced by a substantially younger employee or other substantially younger employees were treated better
Importantly, the U.S. Supreme Court has held that you do not need to show that you were replaced by, or treated worse than, an employee under 40 years of age. Instead, you merely need to show that you were replaced by, or treated worse than, a substantially younger employee.
Once you present evidence of these four facts, your employer must show that its negative decision was based on some reasonable factor other than your age. If and when your employer presents this evidence, the burden shifts back to you to prove that the reason provided is false.
Determining and finding the evidence you need to prove age discrimination is difficult. An experienced age discrimination lawyer can help you find the evidence you need to prove your claim.
Does The Law Protect You From Workplace Harassment Due To Your Age?
Yes. Both the ADEA and the PHRA prohibit workplace harassment based on age. In order to win such a claim, you need to prove the following:
- You are at least 40 years of age and suffered harassment because of your age.
- The harassment was severe or pervasive.
- The harassment negatively affected you.
- The harassment would have negatively affected a reasonable person in your position.
- If the harasser was a co-worker, your employer knew or should have known about the harassment and did nothing to prevent or remedy it.
If the harasser was your supervisor and the harassment culminated in you being fired or demoted, your employer is automatically liable. If, however, your supervisor’s harassment did not result in you being fired or demoted, your employer will win if it can prove:
- It had procedures in place for preventing and remedying harassment or discrimination.
- You unreasonably failed to use those procedures.
- Importantly, as discussed more below, the type of damages you can receive for workplace harassment under these laws is different.
Can An Employer Ask You Your Age Or Date Of Birth On A Job Application?
Nothing in the ADEA of PHRA prohibits an employer from asking for your date of birth or age on a job application or during a job interview. However, because such questions may indicate the employer’s intent to discriminate based on age, they deserve closer scrutiny to ensure they are being asked for lawful reasons.
Can An Employer Legally Discriminate Against You Because You Are Younger, Even If You Are Over 40 Years Old?
Unfortunately, yes. The U.S. Supreme Court has held that the ADEA does not prohibit employers from treating older workers more favorably than younger workers, even those over 40 years old. The same rule applies under the PHRA.
Can Your Employer Make You Retire?
Generally, the answer is no, so long as you continue to satisfactorily perform your job duties. If you can no longer perform your job duties, however, your employer can discharge you.
The ADEA does have special exemptions for police and fire personnel, tenured university faculty, and certain federal employees having to do with law enforcement and air traffic control. Executives or others in “high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
Can You Be Fired To Stop Pension Benefits From Vesting Or Because Your Health Insurance Becomes More Expensive?
No. The Older Workers Benefit Protection Act of 1990 (“OWBPA”) made it illegal for employers to:
- Use an employee’s age as the basis for discrimination in benefits
- Target older workers for layoffs on the basis that benefits are too costly
If you are at least 40 years old, your employer cannot terminate you because your benefits are too costly. Your employer must follow the “equal benefits or equal cost” rule. This rule requires it to either provide equal benefits to older and younger workers or pay the same benefit costs for all employees. The law only allows an employer to reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. In other words, if your employer pays only $100 in monthly premiums for each worker, this policy does not violate the ADEA even if causes you to pay more out-of-pocket for your benefits or to lose benefits.
How Do You File An Age Discrimination Claim?
The ADEA and PHRA both require age discrimination victims to file their claims with the EEOC or the PHRC before going to court. This is called “exhausting administrative remedies.”
If you file your age discrimination claim with the EEOC in Pennsylvania, it will automatically be filed with the PHRC. The same is true if you file first with the PHRC. While you are not required to have an attorney in order to file the complaint, hiring an experienced age discrimination lawyer is crucial to your success. Even at this preliminary stage, you must navigate many complex rules and procedures. Therefore, failure to do so can harm your case.
What Is The Deadline To File An Age Discrimination Compliant With The EEOC Or PHRC?
To protect your age discrimination claims under the ADEA and PHRA, you must file a complaint with the EEOC or the PHRC within 180 days of your employer’s negative action (e.g., termination, demotion, pay cut, etc.). If you file your age discrimination claim with the EEOC, it will automatically be filed with the PHRC. The same is true if you file first with the PHRC.
If you miss the 180-day deadline, you can still protect your federal age discrimination claim under the ADEA. To do so, you must file your complaint with the EEOC within 300 days of your employer’s negative action. However, you will lose your PHRA claim.
If you do not file your complaints by these deadlines, you may lose your claims forever. That’s why it is important to have an experienced age discrimination attorney handle the process for you.
How Long After Filing An Age Discrimination Complaint With The EEOC Or PHRC Can You Sue Your Employer In Court?
If you file an ADEA complaint with the EEOC, you will need to wait 60 days before you can file your lawsuit in court. If you file a PHRA complaint with the PHRC, you will need to wait one year before you can file your lawsuit in court.
What Kind Of Damages Can An Age Discrimination Lawyer Obtain For You?
Your experienced age discrimination lawyer will work to recover compensation for your claim. This compensation is called “damages.” The damages available to you under the ADEA and the PHRA are different. Under the ADEA, you can recover the following kinds of damages:
- Back pay: pay that you lost from the time of the negative employment action until the time your case is resolved in court
- Front pay: pay that you lost from the time your case is resolved in court to some point in the future
- Liquidated damages: equal to the amount of your back pay, but you can only recover liquidated damages if you prove your employer willfully violated the ADEA
Under the PHRA, you can recover back pay and front pay, but not liquidated damages. However, instead of liquidated damages, the PHRA allows you to recover compensatory damages for your emotional distress (also called “pain and suffering” damages).
It can be confusing to determine the types and amounts of damages you can recover. As a result, it is important to speak with a knowledgeable age discrimination lawyer.
How Long Will It Take To Resolve An Age Discrimination Claim?
Generally, age discrimination cases resolve within two years. Some cases may resolve in as little as a few months while others may take several years. Your specific case, however, may take more or less time. This will depend on several factors, including:
- The nature and complexity of your case
- How many people you sue
- The number of witnesses involved
- Whether your employer has insurance to cover your claim
- Which types and amounts of damages you are claiming
- Your employer’s relative willingness to settle your case
If you handle your age discrimination case on your own, it can take a lot longer to resolve. This can cause a lot of uncertainty, stress and wasted time. In order to make sure that your case is moving toward resolution, it is necessary to have an experienced age discrimination lawyer by your side.