Are all employers covered by the ADEA?

No. An employer must have at least 20 employees to be subject to the ADEA.  New York State and New York City laws do 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.  New York 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 employers 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 in 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.

How long will the litigation take to be resolved?

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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