When is Age Discrimination Against the Law?

Age discrimination at work can be hard to detect and even harder to prove. Many applicants never even know that they were illegally passed over because they were too old. What should you be watching for? How will you know whether what happened to you is illegal? When is age discrimination against the law?

In this blog post, I will review the Age Discrimination Enforcement Act (ADEA) and explain what is and isn't illegal age discrimination. I will also summarize past cases by the Equal Employment Opportunity Commission (EEOC) on behalf of older employees, including a recent settlement with the restaurant chain Texas Roadhouse.

ADEA Provides 50 Years of Protection Against Age Discrimination

The Age Discrimination Enforcement Act was passed in 1967 to protect older Americans from losing access to jobs simply because of their age. It applies to both employees and job applicants, and protects them against any unfavorable employment decisions based on age including:

• Hiring
• Firing or lay-off
• Promotion
• Pay, bonuses, compensation, or benefits
• Job assignments and training

It also protects against retaliation for anyone who assists in an ADEA investigation, proceeding, or litigation, including witnesses.

However, unlike other types of workplace discrimination, which apply to any action taken based on a protected trait, the ADEA applies to one specific group: workers and applicants age 40 or older. In addition, it is only designed to protect against discrimination based on old age. If a policy favors older employees it will be upheld even if 40-year-olds are treated less favorably than their older coworkers.

In 1990, the Older Workers Benefit Protection Act added additional protections to keep employers from canceling older workers' benefits simply because of cost. In certain limited situations, an employer may be able to reduce benefits based on a worker's age, but doing so must not drop the cost below what is being paid for younger employees' benefits.

Examples of Age Discrimination at Work

Every case of age discrimination is different. Some are based on employers' explicit statements or questions. Others must be inferred based on hiring trends. How closely the discrimination must be tied to the employment decision also depends on the type of employer. Private employers with 20 employees or more are prohibited from making employment decisions "because of" age, but federal employers' decisions must be "made free from any discrimination based on age" even if there are other factors involved. Here are some examples of successful age discrimination claims and lawsuits through the EEOC:

• Denying a pay raise after a successful performance review. Enriqueta T. v Dep't of the Army, EEOC Appeal No. 0120143049 (Sept. 2, 2016)
• Passing over a 12 year veteran of the position for promotion to program director, in favor of a younger person. Donna W. v Dep't of Transp., EEOC Appeal No. 0720160002 (Aug. 17, 2016), request for reconsideration denied EEOC Request No. 0520160522 (Dec. 13, 2016).
• Asking about how many years an applicant had before mandatory retirement. Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).
• Giving an older employee involuntary reassignment to a less desirable position. Kristy D. v Dep't of the Interior, EEOC Appeal No. 0720160003 (Aug. 10, 2016).
• Passing over a high-scoring applicant for a trainee program in favor of selectees without comparable experience. Cletus W. v Dep't of the Treasury, EEOC Appeal No. 0720160008 (Aug. 3, 2016).
• Harassing an employee because of his age by referring to him as "the old guy" and asking if he could make his way to a meeting or remember things. Bryan T. v Dep't of Homeland Sec., EEOC Appeal No. 0120122110 (March 18, 2016).
• Passing over a qualified candidate whose résumé showed he was above age 40 and highly qualified. Alton F. v Dept. of Def., EEOC Appeal No. 0120140428 (April 3, 2014).

Age Discrimination Hits Texas Roadhouse

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) announced a settlement with the Kentucky-based restaurant chain Texas Roadhouse. The company agreed to pay $12 million to a class of applicants who claimed they had been denied front-of-the-house positions (including servers, hosts, assistants, and bartenders) because of their age. In addition, Texas Roadhouse must establish anti-discrimination policies for hiring and recruiting, bring on a diversity director, and submit to monitoring of its hiring records. In its official press release, EEOC New York District Director Jeffrey Burnstein said:

Identifying and resolving age discrimination in employment is critical for older Americans. The ability to find a new job should not be impeded because an employer considers someone the wrong age.

EEOC trial attorney Mark Penzel added:

Applicants rarely know that they have been denied a job because of their age. When the Commission uncovers such evidence, it will act aggressively and doggedly to remedy the violation.

When age discrimination claims arise, they require skilled employment discrimination attorneys to gather the documentation to prove the case. Because many of these cases involve something not happening (i.e. a person not getting the desired job, or being passed over for promotion), it takes an aggressive approach to make the case that the omission was the result of age discrimination and not some other, legal factor.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know what it takes to win an age discrimination case. We can help you understand your rights to get and keep the work you want, and what your remedies might be if you have faced employment discrimination based on your age. Contact Eisenberg & Baum, LLP, today for a free consultation.