Workplace discrimination is a very serious phenomenon negatively impacting the lives of millions of Americans. There are several kinds of discrimination that are prohibited at one’s place of employment. According to Title VII of the Civil Rights Act of 1964, an employer is not permitted to discriminate based on “race, color, religion, sex, or national origin.”
There are, however, laws meant to protect against other forms of discrimination. One such law is the Age Discrimination in Employment Act (ADEA) which precludes most employers from discriminating against workers over the age of 40. That means employers aren’t permitted to discriminate when firing, hiring, paying a salary, offering benefits and negotiating other terms of employment.
The ADEA was first enacted in 1967, but it has become increasingly pertinent as many boomers have been forced into precarious financial positions because of their age and tight economic conditions. For a while, age-based charges were filed with the Equal Employment Opportunity Commission (EEOC) at a fairly even pace. Between 1997 and 2007, an average of 16-19,000 complaints were submitted. But following the economic crisis of 2008, the number of age-based charges filed with the EEOC sharply increased to between 21,000 and 25,000.
One Possible Explanation
Robert J. Gordon, an economics professor at Northwestern, offered a possible explanation to the New York Times earlier this year. He said, “Once layoffs were done by reverse seniority. It was last in, first out, so the more senior workers kept their jobs,” continuing, “Now we’re seeing a transition from the age of favoritism to that of age discrimination because newer workers are allowed to stay on while more costly, older workers are let go.”
That same New York Times report offered various explanations as to why EEOC age-discrimination filings are rarely successful. For one, according to the AARP Foundation, the ADEA is a relatively weak law that places an unreasonably high burden on the plaintiff. This is especially true in light of a 2009 Supreme Court ruling, which found that age must be the primary motivator and not just a contributing factor.
According to the NYT report, this might be part of the reason so few cases are litigated by the EEOC. Last year, only two ADEA complaints were brought to court by the agency, and a total of 86 related charges were considered before a judge.
However, attorneys at the New Jersey employment law firm of Green Savits take a different view, pointing to another Supreme Court decision. According to that decision, ADEA claimants must prove that age was part of the decision to fire or demote the employee in question. They do not have to prove it was the sole reason. Additionally, as noted by Green Savits, certain states have better protections for the aged community. In New York and New Jersey, for instance, it is easier to prove age discrimination.
Age discrimination comes in a variety of forms. An employer might, for instance, refuse to hire you because you’re over 40. In this case, there are a number of things to look out for. If your prospective employer asks about your age at the initial interview, this is inappropriate and could be used as evidence of discrimination. Or if your prospective employer refers to age-based requirements – like the desire for a “youthful image” – you might be able to pursue compensation.
Additionally, if you find out that a less qualified candidate was hired and that that person was much younger, you might want to talk to an attorney about your options, as this could very well be a case of age discrimination. Finally, if you discover that the prospective employer requires unnecessary qualifications that systematically rule out older candidates, you may be able to pursue legal action.
Again, it’s a good idea to discuss your options with a skilled employment discrimination attorney – one who understands the complexities of age discrimination.