FAQ’S FOR AGE DISCRIMINATION
Are all employers covered by
the ADEA?
No. An employer must have at
least 20 employees to be subject to the Federal Age
Discrimination in Employment Act. State and City laws may
vary. For example, New York State and New York City anti-age
discrimination laws cover employers who have 4 or more
employees. The ADEA applies to workers employed by the federal
government, labor unions, and private employers. State
governments are not covered by the ADEA. The statute also
applies to referrals made by employment agencies.
What types of employment
actions are covered by the ADEA?
All adverse employment actions
are prohibited by the ADEA. These include:
- hiring and
firing;
-
compensation, assignment, or classification of employees;
- transfer,
promotion, layoff, or recall;
- job
advertisements;
-
recruitment;
- testing;
- use of
company facilities;
- training
and apprenticeship programs;
- fringe
benefits;
- pay,
retirement plans, and disability leave; and
- any other
term or condition of employment.
What evidence is necessary to
help prove an age discrimination claim?
The
proof will vary depending on the factual circumstances of your
case. Generally, there are two types of proof of age
discrimination. The first is “direct evidence” of the employer’s
discriminatory intent. Most employers are too sophisticated to
make oral statements such as "John Smith is too old to work here
anymore." But such evidence occasionally is presented, and
would constitute direct evidence of an employer’s discriminatory
intent.
In
most cases, however, the employee does not have direct evidence
and must rely on “indirect evidence” often referred to as
circumstantial, evidence. In this type of situation, an
employee might be able to show age discrimination if he/she can
prove:
- He/she was
over 40 years of age at the time of the adverse employment
action;
- He/she was
qualified for his/her position at the time of the adverse
employment action;
- He/she was
subject to an adverse employment action; and
-
the adverse employment action
occurred under circumstances giving rise to an inference of
age discrimination.
Oftentimes, an employee can show age discrimination when he/she
can prove that the employer’s stated reason for termination,
e.g. position elimination, is false. For example, the employer
tells an employee that his/her position is being eliminated, but
shortly after the termination the employer hires a younger
employee to replace the older employee to do the same work at
significantly lower wages/salary.
What are the characteristics
of a meritorious ADEA claim?
All
cases are different. In each case one or more of the following
factors may be more important or less important than others.
Taken as a whole, the following list provides an overview of the
kinds of characteristics common to meritorious ADEA claims:
- Long-term
employee;
- Highly
compensated;
- Replaced
with significantly junior worker;
- Employee
has good or excellent performance reviews;
- Employee
has good or excellent prior disciplinary record;
- Employer
cannot articulate specific reason for adverse employment
action;
- Employee
received recent uncharacteristic discipline shortly before
termination;
- A new
supervisor or manager;
- Supervisor
or Management indicate a prejudice against older workers or
older workers’ ability to perform based solely on age.
Can I
waive my rights under the ADEA?
An employer may ask an employee to
waive his/her rights or claims under the ADEA
either in the settlement of an ADEA administrative or court
claim or in connection with a severance package. However, the
ADEA, sets out specific minimum standards
that must be met in order for a waiver to be considered knowing
and voluntary and, therefore, valid. Among other requirements,
a valid ADEA waiver must:
- Be in
writing and be understandable;
-
Specifically refer to ADEA rights or
claims;
- Not waive
rights or claims that may arise in the future;
- Be in
exchange for valuable consideration;
- Advise the
individual in writing to consult an attorney before signing
the waiver; and
- Provide
the individual at least 21 days to consider the agreement
and at least seven days to revoke the agreement after
signing it.
In the event a
lawsuit is filed, it is truly impossible to predict the duration
of litigation. Certain companies may wish to settle the case
early; others may wish to have their day in court. Cases filed
in federal court are generally resolved quicker than those filed
in state court.
How long
do I have to file an age discrimination claim?
The
time limit depends on whether you are filing under state or
federal laws. A guideline is, from the date of the last adverse
employment action:
- Federal –
300 days;
- New York
State and New York City – 1 year
These deadlines are for filing with
a federal or state agency, for example: The Equal Employment
Opportunity Commission (“EEOC”) or the New York State Division
of Human Rights (“NYSDHR”). To file a complaint under federal
law in New York, you must file a claim with the EEOC before you
can file suit in federal court within 300 days of the last
adverse employment action. Under New York State Law, you can
elect to file a claim with the NYSDHR within 1 year of the last
adverse employment action, or you can file your suit directly in
state court. If you choose to forego filing with the NYSDHR
then you have 3 years from the last adverse employment action to
file suit in state court.
What relief can a court award
a victim of age discrimination?
A court can order an employer to
pay monetary damages for:
-
Back-pay
-
Front-pay
-
Compensatory Damages for willful
violations of the ADEA to compensate the employee for mental
anguish or other physical injuries suffered as a proximate
cause of the employer’s conduct. Under the ADEA, the amount
of compensatory damages recoverable is 2 times the
employee’s actual lost wages and benefits
-
Reimbursement of employee’s
attorneys’ fees and expenses in bringing the Complaint.
The Court may
also order injunctive relief to enforce future compliance with
the Act.
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