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Frequently Asked Questions in Age Discrimination

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Kramer + Crone AgeRights

Frequently Asked Questions
in Age Discrimination

What does the ADEA do?

What types of employment actions are covered by the ADEA?

Can I be forced to retire because of my age?

Is every employer covered by the ADEA?

Which employees are covered by the ADEA?

What are the elements of an age discrimination claim?

Who investigates complaints brought under the ADEA?

How long does an employee have to bring a claim for age discrimination?

What is the process to take a claim from the EEOC to District Court?

Can an employer escape liability under the ADEA by replacing the older worker with a younger worker who is over 40?

What relief can a court award a victim of age discrimination?

What are the characteristics of a meritorious ADEA claim?

Can an employee waive or release her rights under the ADEA?


What does the ADEA do?

Generally, the ADEA prohibits the employer from making employment decisions based on the age of the employee as opposed to the employee’s job performance or the merits of the situation.

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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.

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Can I be forced to retire because of my age?

No. Generally, it is unlawful for an employer to mandate any specific retirement age. As with any law, however, there are exceptions to this. For example, airline pilots, air traffic controllers, and certain public-safety officers can legally have mandatory retirement ages. Because of the narrowness of these exceptions, if you are being asked to retire because of your age, you need to consult an attorney with experience in this area of the law.

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Is every employer 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 laws may vary. For example, Tennessee’s Human Rights Act covers employers who have 8 or more employees. The ADEA applies to workers employed by the federal government, labor unions, and private employers. In January, 2000, the United States Supreme Court held that state governments are not covered by the ADEA. The statute also applies to referrals made by employment agencies.

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Which employees are covered by the ADEA?

Employees over the age of 40 who work for a covered employer are protected by the ADEA. As with all laws, there are exceptions in the statute to this simple rule:

  • Executives or other employees in "high policy-making positions" may be forced to retire at the age of 65, provided they are paid $44,000.00 or more in retirement pension benefits.
  • Law enforcement and fire personnel, if certain specific conditions are met; tenured university faculty; and certain federal employees in law enforcement and air traffic control.

If an employer can prove that age is an essential qualification of a job or a "bona fide occupational qualification" (BFOQ), then the employer can use age as a basis for discrimination. Employers must be extremely careful when invoking this exception.

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What are the elements of an age discrimination claim?

The elements of proof will vary depending on the exact factual circumstances. Generally, there are two types of proof of age discrimination. The first is direct evidence of the employer’s discriminatory intent. This type of evidence is very rare, but usually takes the form of oral statements that the employee is "too old" or "there is too much white hair in this company." Once the employee has shown direct evidence of age discrimination, the burden of proof shifts to the employer to prove that it would have taken the adverse action even without the discriminatory intent.

In most cases, however, the employee does not have direct evidence and must rely on indirect, or circumstantial, evidence. In this type of situation, an employee has a valid claim for age discrimination if she can prove:

  • She was over 40 years of age (a member of the protected class) at the time of the adverse employment action;
  • She was an employee of the employer at the time of the adverse employment action;
  • She was subject to an adverse employment action; and
  • She has been treated differently than younger workers. In the case of a termination, the worker must be replaced by a younger worker.

If an employee can make this initial showing, often very easy to do, then the employer must show that it has a non-discriminatory reason for the action. In other words, the employer must show it took the action for a reason other than the employee’s age. If the employer can demonstrate this non-discriminatory reason for the action, the burden of proof shifts back to the employee to prove that the employer’s stated reason is a mere pretext.

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Who investigates complaints brought under the ADEA?

The Equal Employment Opportunity Commission (EEOC) is the federal agency which receives complaints under the ADEA. The EEOC will investigate the claim, seek to resolve the claim by negotiation or otherwise, and in some cases bring a complaint in United States Federal District Court for enforcement of the Act or issue a letter giving the employee the "Right to Sue" on his own behalf.

Employees may have state law claims which may be filed with a state agency or directly in state court. These rights are generally independent of the employee’s ADEA claims and should not be ignored, as they will disappear if not timely brought.

While EEOC and some state agencies do investigate claims of employment discrimination, due to a high backlog of cases and limited resources, an investigation may not be as thorough as you may wish. Further, the vast majority of charges filed with the EEOC and state agencies end in "no cause" findings. In addition to EEOC and state agencies, the individual employee, acting through an attorney, can proceed with an informal "investigation" in an effort to resolve the dispute without the necessity of filing a lawsuit. The primary benefit to an individual investigation is that it moves as fast as the parties will allow it and it is as thorough as the claimant can make it.

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How long does an employee have to bring a claim for age discrimination?

The employee must file his claim with the EEOC within 180 days of the alleged discriminatory practice. In some states the employee may have as many as 300 days to file the complaint with the EEOC.

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What is the process to take a claim from the EEOC to District Court?

Once the employee has filed a complaint with the EEOC setting forth a brief factual basis for his claim, the employer is required to file a response to the complaint, along with supporting documents. The EEOC may then conduct a factual investigation of the claim. This investigation may include interviewing witnesses, taking statements under oath, and subpoenaing records.

After its investigation, the EEOC may decide to file a lawsuit against the employer itself or issue a "right to sue letter." The letter is not a final determination on the merits of the claim, merely a statement by the EEOC that it will not pursue the matter into Federal Court. The EEOC has issued guidelines for determining the enforcement priority of the various laws it enforces. Click here to see that policy statement.

Once the Notice of Right-to-Sue is received, the Employee has 90 days to file his own complaint in Federal District Court.

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Can an employer escape liability under the ADEA by replacing the older worker with a younger worker who is over 40?

No. Depending on the facts of the case, a violation could occur if a person were terminated because of her age even if she were replaced with a worker who was over 40 but younger than the terminated employee.

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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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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 a sketch of the kinds of characteristics common to meritorious ADEA claims:

  • Long-term employee, 15 or more years of seniority;
  • 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.

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Can an employee waive or release her rights under the ADEA?

During a legal reduction in force, as a result of an involuntary termination or voluntary termination or retirement, an employer might offer a severance package which contains a release and waiver of the employee’s ADEA rights. The release or waiver will be enforceable if it contains the following:

  • A clear, understandable written statement of the agreement and waiver;
  • The agreement specifically references the ADEA;
  • The agreement does not waive future claims under the ADEA;
  • The agreement must have consideration (value) above and beyond what the employee would otherwise be entitled;
  • The agreement advises the employee in writing that he may consult an attorney prior to executing the agreement;
  • The employee is given 21 days to consider the agreement; and
  • After the employee executes the agreement, he is entitled to 7 days to revoke his acceptance of the agreement.

The ADEA imposes other requirements for waivers involving "employment termination programs incentives offered to a group or class of employees."

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