Age Discrimination in the Workplace
The Age Discrimination in Employment Act (ADEA) prohibits discriminating against workers 40 years old and older because of their age. Many states also have laws prohibiting age discrimination in the workplace. The Older Workers Benefit Protection Act (OWBPA) of 1990 amended the ADEA to specifically prohibit employers from discriminating against older worker by denying them benefits.
State by state comparision of 50 employment laws in 50 states, including age discrimination
Layoffs and workers 40 years old and older
It’s important for employers to plan carefully when conducting layoffs that involves older workers. Because of the requirements of laws affecting older workers, it’s best for companies to consult their attorney to help meet all the legal requirements and to avoid age discrimination charges.
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What is age harassment?
Age, like other protected class for workers, also can be the basis of a harassment claim. Although the U.S. Supreme Court hasn’t ruled yet whether an employee can sue for age harassment under the Age Discrimination in Employment Act, federal appellate and trial courts have found that a claim for age harassment does exist.
What that means for employers is that regardless of what state they do business in, they should act as though age harassment is a protected class and admonish their employees not to engage in such behavior.
Age harassment claims tend to arise because of an employer’s age-biased comments – or tolerance for coworker comments. The employee then points to the the comments as proof that her age was the motivation for an adverse job action. Even if the employee doesn’t allege age harassment, she can use that evidence to strengthen her case that the company was biased on the basis of age.
Adverse employment actions and older workers
There are some explicit defenses and exceptions in the ADEA defining when an employer may adversely affect the employment of a person age 40 or older. In general, employers may make employment decisions that adversely affect a worker ’s employment status and pay and benefits if its motivation is a “reasonable factor other than age” or falls into one of the narrowly defined exceptions.
As is the case with all forms of discrimination, retaliating against an employee who files an age discrimination charge is unlawful under the ADEA. After an employee has filed a charge or complaint against his employer, whether internally or with an outside agency — such as the Equal Employment Opportunity Commission (EEOC) — or court, the employer should refrain from taking any action against the employee that might be construed as retaliation.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
The number of older workers is on the rise and only looking to increase in the years ahead as the baby boomers enter their golden years. That’s putting many employers in a tricky situation of having to do succession planning while avoiding comments and actions that might be construed as age discrimination or harassment. It’s not an impossible task, but it must be done carefully.