Age Discrimination

According to a recent article in the New York Times, older employees, even those of retirement age, are staying in the workforce longer. Some are working longer out of necessity while others remain simply because of increased longevity. Whatever the cause for the trend, it is important to understand the laws that are in place to protect this older generation of workers.

The Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees who are age 40 or older. This laws provides no protection to workers under the age of 40. Under the ADEA, an employer may not discriminate in any aspect of employment including hiring, firing, pay, job assignments, promotion, layoff, training, fringe benefits or any other term or condition of employment. Additionally, it is unlawful to harass an employee on the basis of his or her age. While an occasional comment about a person’s age will not rise to the level of harassment, severe and pervasive comments may be enough to create a hostile work environment.

It is important to keep in mind that the ADEA will only apply to employers with 20 or more employees. To pursue a claim under the ADEA, an employee must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Upon receipt of a complaint, the EEOC will reach out to the employer to see whether or not there is an interest in mediating the dispute. If the employer is not interested in mediation, the complaint will proceed to the investigation phase. With its limited resources, the EEOC is simply unable to thoroughly investigate and pursue every complaint. If the EEOC does not find sufficient evidence that a violation of the ADEA has occurred, it will issue the employee a “right to sue” letter. If a “right to sue” letter is issued, an employee has 90 days to file a lawsuit in court. An employee who prevails under an ADEA lawsuit may recover a full range of damages including back pay, front pay, attorney’s fees, liquidated damages where willful violation can be established and, if appropriate, injunctive relief.

The ADEA was amended in 1990 to include the Older Workers Benefit Protection Act (OWBPA). An employer seeking to terminate an employee may wish to obtain a release to limit the employer’s exposure to a potential lawsuit. However, if the employee is age 40 or older and the employer wishes to obtain a valid release of federal age discrimination claims, it must strictly comply with the provisions of the OWBPA. A release will only be considered valid if it is “knowing and voluntary.” This means, the release must: (1) be in writing; (2) it must be written in plain language; (3) it must give the individual 21 days to consider the agreement and seven days to revoke following execution of the agreement; and (4) it must advise the employee of his or her right to consult with an attorney. This, of course, is not an exhaustive list of requirements; therefore, it is best for an employer to consult with an attorney when draft ing such an agreement.

In addition to the ADEA, Ohio has three different statutes providing protection against age discrimination. ORC §4112.02 establishes a civil cause of action for age discrimination. Under this section, an employee must file suit within 180 days from the alleged violation. If successful, an employee is entitled to recover a full list of available remedies including compensatory and punitive damages.

To confuse matters further, ORC §4112.14(B) also establishes a civil cause of action for a person age 40 or older who is discriminated against in any job opening or is discharged without just cause but who is “physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee.” An age discrimination claim brought under this section is subject to a six-year statute of limitations. An employee who prevails under this section may be entitled to lost wages and benefits, reinstatement, reimbursement of costs and attorney’s fees.

Finally, ORC §4112.05(B) allows an employee to file an administrative action for age discrimination with the Ohio Civil Rights Commission (OCRC). This must be filed within six months of the alleged violation. If an employee files a charge under this section, he or she is barred from filing a subsequent private civil action. Likewise, an employee must elect to pursue a remedy under either ORC §4112.02 or §4112.14. An employee is barred from pursuing recovery under both statutes.

This article merely scratches the surface of the complex group of federal and state laws that prohibit age discrimination. Because the statutes of limitation and damages vary widely, an attorney must analyze claims on a case-by-case basis to determine which statute provides the best chance of recovery. Richard N. Selby II 

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