Age Bias Is Always a Threat, So Know Your Rights

By Toni Vranjes

November 23, 2010

Even if you’re young, it’s hard finding a job in tough economic times. But older workers face a double whammy: a weak economy, and the possibility of age discrimination.

Although the threat will always be there, you can protect yourself by knowing your rights — not only during the job search, but also after you find a job.

The Age Discrimination in Employment Act protects people who are age 40 and older. The federal law forbids age discrimination in any aspect of employment, including hiring and firing decisions.

Therefore, a company that asks for a job applicant’s age or date of birth should be prepared to explain why it needs that information. Although the law doesn’t forbid such requests, the government examines the inquiries to ensure that the employer is seeking the information for a legal reason. In addition, the law prohibits employers from laying off older workers because of their age.

If you’re wondering whether you might have a case against an employer, visit the website of the Equal Employment Opportunity Commission, which enforces the federal law.

Over the long term, an increasing number of people have accused employers of discriminating against them based on their age. During the 2009 fiscal year, the agency received 22,778 claims alleging age discrimination. That was the second-highest number of charges ever filed.

Christine Nazer, a spokeswoman for the EEOC, says the agency often sees a rise in age-discrimination cases during economic downturns. During those periods, employers increasingly resort to layoffs and restructurings to cut costs — and discrimination complaints may follow.

Another factor in the increased filings is the graying of the American workforce, Nazer says. And as the Baby Boom Generation continues to age, the EEOC plans to monitor the impact of that trend on filings, she adds. By 2018, seniors age 55 and older will make up nearly a quarter of the labor force, according to projections from the U.S. Bureau of Labor Statistics.

If you believe you may be a victim of discrimination, you should report your grievances to the EEOC. You generally must file a “charge of discrimination” with the agency before filing a lawsuit. The EEOC has strict time limits for taking action. Also, in some cases, the agency files its own lawsuits against employers.

If you’re considering legal action against an employer, you should know the hurdles that will lie ahead.

“Age-discrimination cases are difficult to prove,” says Adam Augustine Carter, a lawyer who represents plaintiffs in these cases.

An employer who is discriminating typically won’t come right out and say, “You’re just too old — you’re fired.” So plaintiffs’ lawyers often have to rely on circumstantial evidence in these cases, says Carter, of The Employment Law Group in Washington, D.C.

For example, if the employer claimed the worker was fired for poor performance, the evidence could be a glowing performance review that contradicts the stated reason. Or, the circumstantial evidence could be proof that the employer often makes “ageist” remarks that disparage older workers as a group.

A 2009 U.S. Supreme Court decision, in Gross v. FBL Financial Services, has made age-discrimination cases even harder to prove. Now plaintiffs must show that age was the decisive factor in the employment decision, instead of just one of many reasons.

In response, Congress introduced a bill last year that would reverse the Supreme Court ruling. The bill, called the “Protecting Older Workers Against Discrimination Act,” was sponsored by Sen. Tom Harkin (D-IA) and Rep. George Miller (D-CA).

While the new Republican majority in the House of Representatives is unlikely to make passage of the act a priority, the bill nevertheless may get bipartisan support, according to Donna Lenhoff of the National Employment Lawyers Association.

That’s because it simply would restore the legal standard for proving discrimination to the status quo before the Supreme Court’s decision, says Lenhoff, the group’s legislative and public-policy director, who is based in Washington, D.C.

Because employers had been operating under that legal standard for a long time without challenging it as unworkable or burdensome, they and the new majority have little reason to oppose restoring it now, she adds.

For more information on the federal age-discrimination law, visit the EEOC website.

Many states also have their own age-discrimination laws, as well as agencies that enforce the legislation. If you have a grievance, research the laws in your state as well.

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