Making an Age Discrimination Claim
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What Is Age Discrimination?
The Age Discrimination in Employment Act (ADEA) makes it illegal for employers to discriminate against their workers over 40 years old on the basis of age. It applies to employers with more than 20 employees. Under the law, it is illegal for an employer to discriminate based on age in hiring, wages, promotion, or termination.
How Do I Bring An Age Discrimination Claim?
In order to bring an age discrimination claim, an employee has to file a claim with the Equal Employment Opportunity Commission. If the EEOC believes that the claim is valid, the federal agency will send a “right to sue” letter, which allows the employee to bring the claim to court. If the employee attempts to go to court without the letter, the judge can dismiss the case.
In order to make out an initial (prima facie) case of intentional age discrimination under the ADEA, 4 facts must be shown:
- The plaintiff is over 40
- The plaintiff was qualified for the job sought, or was performing it to the employer’s satisfaction
- Some action was taken against the plaintiff, such as refusal to hire or promote, termination, or demotion.
- Most courts also require proof that the position was then filled with a younger person, typically a person at least five years younger
These facts are required because they strongly imply that the employer’s conduct was motivated by the worker’s age. Therefore, a showing that the employee was over 40, and then was fired, is not enough.
Absent any other information, there is no way of showing that the employee’s age was a motivating factor for the employer’s conduct, and no claim.
What Defenses Can An Employer Bring?
Once the required facts are shown, the employer has the opportunity to raise defenses. The most common defense is the “bona fide occupational qualification” defense. This simply states that the employer had a legitimate reason to take the action in question, and that age had nothing to do it.
The employer can also say that the adverse action against the employee was not due to age, but other factors like poor job performance.
If this is shown, the employee has one more chance to win the case, by showing that the employer’s legitimate reasons are actually a pretext, to cover for his real discriminatory motive.
Can Employees Bring An Unintentional Age Discrimination Claim?
Yes. Employees can bring an unintentional age discrimination claim through the same procedure as intentional age discrimination, through the EEOC. In order to bring a claim for unintentional discrimination, an employee must show:
- A specific business practice or policy used by the employer
- Which effects a group of employees in a negative way
- That the specific business practice or policy used by the employer caused the negative effect on the group of employees
- In an age discrimination claim, the group of employees effected must be over 40
- The employee must be able to provide alternative practices or policies which accomplishes the employer’s goals but do not discriminate against the employee
The policy most likely to result in unintentional discrimination based on age is “downsizing” or reducing the workforce of the company or organization.
Do I Need an Attorney Experienced with Age Discrimination Cases?
Pursing an age discrimination claim against an employer is complicated because procedural laws vary depending on where and when you file your claim. An employment lawyer will help you with the filing deadlines specific to your claim. Since EEOC investigators will not get to your claim immediately, a lawyer can help you investigate and pursue any additional remedies.
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Last Modified: 05-14-2013 03:00 PM PDT
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