Age Discrimination

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It's rare that an employer says “Sorry, Jean, but you're too old to work here so we have to let you go.”  Age Discrimination is usually much subtler.

Age Discrimination does often start with a few comments here or there.  “Aren't you getting tired?”; “you should really start thinking about retiring”; “you know, it's going to be tough to keep up with these young kids” – these are some of the more common ones. 

The written counseling, warning, or performance improvement plan (“PIP”) (Link) comes next – with the employee generally being disciplined over something that was not an issue in the past or was not an issue for other, younger, employees. 

The firing comes last, and often comes with a severance agreement (LINK) in exchange for signing a release (link).  TIP: If you have any suspicion whatsoever that you may have been the victim of Age Discrimination do not sign a severance agreement without speaking to an attorney.

The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer who has 20 or more employees to terminate or otherwise discriminate against an individual over the age of 40 based upon that person's age.

In addition, the New York State Human Rights Law protects employees over the age of 18 from discrimination in hiring or firing based upon age.  This law applies to employers who have 4 or more employees.

Common Questions from Victims of Age Discrimination

What Do I Have to Prove to Show Age Discrimination?

Proving age discrimination under the ADEA has always been a challenge, however this challenge was complicated when the United States Supreme Court determined that the applicable standard in an age discrimination case under the ADEA was a “but for” test. 

In other words, an age discrimination victim must prove that “but for” his age, he would not have been fired (or would have been hired, depending on the circumstances). 

This may not sound like a significant issue, but legally it is.  The standard applied in nearly every other case of employment discrimination is a “motivating factor” standard – in other words the plaintiff must show that race/disability/sex/pregnancy was a motivating factor in the decision to terminate (or not hire) – not that it was the only factor or even the primary factor.  Practically this serves to make the Age Discrimination Plaintiff's case even more difficult. 

Could I Have Been the Victim of Age Discrimination if I Was Not Fired?

You don't have to be fired to have been discriminated against based on your age. In fact, there are many more subtle ways in which age discrimination may occur, including: 

  • Being passed over for promotions – often with younger employees receiving the promotion, with a less than adequate justification
  • Being paid lower wages than younger employees performing the same work
  • Discrimination in the hiring process (e.g. expressing age preference or limits for a position)
  • Denial of benefits
  • Forced retirement

Remember that there are exceptions to these general guidelines, and that age itself must, at a minimum, be the motivating factor (and under the ADEA the factor) in the decision-making process. Being paid less than a younger coworker who performs the same job does not automatically or necessarily mean that you have been the victim of age discrimination.

Is there such a thing as “Reverse Age Discrimination”

What if you were not hired or were fired because you were too young?  

This is known as reverse age discrimination, and it is not protected under the ADEA – which only applies to employees over the age of 40.

Reverse age discrimination is, however, protected under the New York State Human Rights Law, and while much less common, there have been several cases where younger employees have successfully claimed that they were targeted because they were too young.  You can read an example of a D'Orazio Peterson success on a reverse age discrimination case here (Link).

How do I make a legal complaint for Age Discrimination in New York? 

If you have been the victim of age discrimination you have a couple of options.  First and foremost, if you still work for the employer be sure that you have made a complaint as required under any employer handbook complaint procedure (link).  The failure to do this can provide the employer with a very strong defense to any complaint of age discrimination.

Assuming you have either been fired or have made an internal complaint (and the discrimination has continued), you can either pursue your claim in New York State Supreme Court, or in an administrative agency.

The New York State Human Rights Law, which covers age based discrimination complaints under New York law, does not require you to file an administrative complaint before filing a lawsuit.  So, in theory you could go straight to court with your state law case.

Practically, the ADEA does require you to file an administrative complaint – generally with the EEOC – before filing a lawsuit in Federal court.  The nice thing about the ADEA, unlike other federal anti-discrimination laws, is that you only must give the EEOC 60 days to investigate the case before you move on and file your lawsuit in Federal court (in most cases you must wait six months). 

If you plan to file pursue age discrimination claims under both the ADEA and New York State Human Rights Law, the general approach would be to file an administrative complaint with the EEOC, then after 60 days have passed file a lawsuit in Federal Court that includes both federal and state law claims of Age Discrimination.

What Damages can I recover for Age Discrimination?

Damages vary under state and federal anti-discrimination laws.  Under the ADEA you are entitled to recover damages for your lost earnings, including back pay, front pay (lost pay into the future), loss of fringe benefits and loss of retirement benefits (link)).  Employees cannot recover emotional distress damages under the ADEA, nor can they recovery punitive or punishment damages.  You may be able to collect liquidated (or double) damages under the ADEA if you can show that the employer's violation of the law was “intentional”.  Finally, a successful ADEA plaintiff is also generally entitled to an award of attorney's fees (link), which serve as a significant bargaining chip in negotiations with the employer.

Employees who sue for Age Discrimination under New York law are entitled to recover damages for lost wages and benefits, emotional distress and loss of earnings.  They are not entitled to recover attorney's fees or liquidated damages.  Punitive damages are not permitted. 

As you can see, ADEA and New York State Human Rights law differ on available damages.  For this reason, it is critical to properly evaluate your legal options before filing any type of claim.  Ideally you want to be able to benefit from both laws.

If you have questions or require assistance related to Age Discrimination in New York contact us today.

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