There are two types of age discrimination:
- Disparate treatment: when an employer intentionally treats you differently because of your age, and
- Disparate impact: when a policy (that seemingly appears neutral) has a disproportionately negative impact on older workers.
Under federal law, you have a prima facie age discrimination case if you can prove:
- You were 40 years old or older,
- You were qualified for the job,
- You experienced an adverse employment action, and
- You were replaced by someone substantially younger.
Depending on your claim, you might use different forms of evidence. Sometimes, you might have direct evidence of discrimination (such as statements from your boss that you were demoted because of your age)—but this is relatively rare. Instead, most age discrimination claims involve circumstantial evidence (such as an employer’s pattern of firing older workers).
If you are 40 year old (or older), it is illegal for an employer to discriminate against you based on your age. Age discrimination occurs when you experience an adverse employment action (such as termination, demotion, or a reduction in hours or responsibilities) due to your age. It is also illegal to retaliate against someone who has filed an age discrimination complaint. The Age Discrimination in Employment Act (ADEA) covers federal age discrimination claims. Depending on where you live, state and municipal laws may also apply.
There are a variety of agencies that handle age discrimination complaints. On the federal level, the Equal Employment Opportunity Commission (EEOC) investigates and processes employment-based discrimination issues. And, most states have anti-discrimination agencies. Finally, some large cities (such as New York) have their own anti-discrimination laws.
Before you file an age discrimination complaint, you should organize your evidence and do some basic research. (The complaint process and its filing deadlines will vary depending on whether you are making a federal, state, or municipal complaint.)
To file an EEOC charge, you must submit information about the alleged discrimination either in person or in a signed letter. You typically must file a federal complaint within either 180 or 300 days of the date of discrimination. Once the EEOC receives your complaint, it will investigate your claim.
Depending on its findings, the agency might decide to file a lawsuit on your behalf. However, this is relatively rare. The EEOC has very limited resources and cannot handle every discrimination complaint in the United States. Even if you have strong evidence of age discrimination, the EEOC might decide not to litigate your claim.
Instead, the EEOC will issue a “right to sue” letter after its investigation is completed. Under federal law, you cannot file an age discrimination lawsuit until you have this letter. (If you file a federal lawsuit before the EEOC issues a right to sue letter, the court will automatically dismiss it.)
Your employer has a series of defenses, which will vary depending on the circumstances surrounding your discrimination claim. They might include:
- Bona fide occupational qualifications: An employer can make age-based employment decisions if they are reasonably necessary for the business’ operation.
- Reasonable factor other than age: Your employer presents evidence that a policy or employment action was actually based on other, non-discriminatory factors.
- Business necessity: An employer’s decision or policy is necessary for business operations (such as during a reduction in force).
- Compliance with a bona fide seniority system or other benefit plans: Your employer can assert that the adverse employment action was required under a bona fide seniority system, employee benefit plan, or early retirement plan.
Because these defenses are very fact-specific, it’s important to understand the strengths and weaknesses of your claim. A discrimination lawyer can help you assess your case.
If your employer violates age discrimination laws, you can recover damages. While damage awards vary depending on your circumstances, they can include:
- Economic damages: compensation for your lost wages, costs related to a job search, and other expenses related to the discrimination.
- Compensation for emotional distress: only available under certain state laws,
- Punitive damages: additional compensation if your employer intentionally and willfully discriminated against you, and
- Attorneys’ fees: your employer must pay your attorney's’ fees under certain circumstances.
However, you must attempt to mitigate your damaged by searching for work during your discrimination claim. If you do not search for work, the court can reduce your recovery.
Sometimes, your employer will ask you to waive legal rights as part of a severance agreement. Under certain circumstances, you can waive your right to file an age discrimination complaint. However, the waiver must meet strict requirements to be valid. If you have questions about a waiver you signed, contact a discrimination lawyer immediately.
To properly file an age discrimination complaint, you must follow a strict claims process and meet a series of filing deadlines. Additionally, you must compile evidence and present it to both an administrative agency and the courts. Most people cannot handle this process on their own. A skilled employment lawyer can help you successfully file an age discrimination complaint and receive fair compensation for your damages.