What is Age Discrimination?
In one age discrimination case we handled, a gentlemen who had worked at the same factory for over 35 years was subjected to frequent name-calling, cruel pranks and people repeatedly asking when he was going to retire. Supervisors went out of their way to force him to use a certain machine (not part of his ordinary job duties) that they knew had caused him excruciating pain the last time he had used it, putting him out of work for several days. When he refused, they fired him for “insubordination.”
The most obvious examples of unlawful age discrimination are firing or refusing to hire employees because they are over 40. But Ohio and federal law also prohibit discrimination against employees because of their age with respect to any other aspect of employment. That means employers may not use age as a basis for harassment, demotion, denial of promotion, pay cuts, unfavorable job assignments, or any other term, condition, or privilege of employment. Retaliation against employees who report suspected age discrimination is also prohibited by Ohio and federal law.
Some examples of age discrimination and harassment include:
- Repeatedly asking an employee, “Are you going to retire?” or “When are you going to retire?”
- Comments such as: “We want a more youthful image for our company,” or “We need more young blood in the company.”
- Laying off older employees with the highest salaries first
- Refusing to hire anyone who appears older than a certain age
- Refusing to invest in an older employee’s training and growth
- Giving poor performance reviews or write-ups that are undeserved and then firing the employee as a result
- Passing over an older worker for a promotion and hiring a younger person instead
- Threatening to fire an employee if he/she does not retire
- Forced retirement
Not every employment decision that affects an older worker is considered illegal age discrimination. Employers may make decisions based on age when the employee’s age is a “bona fide occupational qualification” that is necessary for the particular job in question. That exception is very narrow, however, and will apply only under limited circumstances. Employers can also claim a defense in an age discrimination case if they can show that the adverse action was based on reasonable factors other than age or a bona fide seniority system.
Retaliation is Also Prohibited
Both Ohio and federal law include protections against retaliation. This means that if an employer takes an “adverse employment action” against (i.e., punishes) an employee because the employee complained about discrimination in the workplace (or engaged in another “protected activity”), the employee can file a lawsuit specifically for retaliation. It is common for lawsuits to include cases for both discrimination and retaliation. Read more about retaliation here.
Filing an Age Discrimination Lawsuit
To pursue a federal claim under the federal Age Discrimination in Employment Act, an employee cannot simply file the claim in court. The employee must first file a “charge of discrimination” with the Equal Employment Opportunity Commission (EEOC). The time limit for doing so is short and strict. Additionally, unless the employee includes very specific legal language when filing the Charge, the employee may risk waiving the right to also bring an age discrimination claim under Ohio law, due to a doctrine known as “election of remedies.” Furthermore, Ohio’s age discrimination laws are unique and there is a lot of strategy with regards to deciding which “prong” of the law to sue under.
The best way to navigate the myriad legal hurdles, avoid pitfalls and protect your rights is to contact an experienced age discrimination attorney before taking action.
Additional Issues Under the Age Discrimination in Employment Act
There are also special rules that apply when employees over 40 are offered severance packages in exchange for waiving their right to file a lawsuit. Before a waiver of an age discrimination claim will be enforced, the employer must take several steps:
- The employer must provide a waiver in writing, in clear language that can be easily understood by the employee.
- The waiver must specifically refer to the Age Discrimination in Employment Act.
- The waiver must be given in exchange for something of value given to the employee, for instance, severance pay the employee would not otherwise be entitled to receive.
- The employee must be advised in writing to consult with an attorney.
- The employee must be given at least 21 days to consider whether to sign the waiver agreement, and must be given at least 7 days to change his or her mind after signing. (If the employee is being offered severance as part of a group layoff, the employee must then be given 45 days to consider whether to sign.)
We have extensive experience helping people over 40 who have been discriminated against, harassed and fired, and we also have experience representing employers in age discrimination matters. Call us at (513) 621-4999 to discuss your age discrimination issue, or call Alex’s direct line at (513) 621-2500.