Age Discrimination Remains a Stark Fact in America
It is an unfortunate reality that we continue to exist in a time of relentless and persistent age discrimination. In fact, one of the fastest growing specialties in the legal profession is in dealing with cases of discrimination based on age.
Most of the growth in this area has been attributed to the fact that there is an increasingly large number of aging employees found in the workplace as the baby boomer generation becomes more mature and moves toward retirement. There have been some accusations of age discrimination based on an underlying motivation of firing an employee that is getting close to retirement age so that the company is able to save on pension and retirement benefits.
Since the year 2000, age discrimination claims have risen each year. However, some people attempt to discount these cases as simply being a component of the overall growth in employment layoffs and the general economic situation since the beginning of this millennium.
According to statistics, anytime there is an increase in layoffs and workforce downsizing the number of age discrimination claims spikes. Experts comment that during times of higher unemployment some of the claims of people being discriminated again due to age are legitimate while others are simply taking advantage of the situation and their age to attempt to receive a monetary settlement through the courts.
Under the United States Federal Age Discrimination in Employment Act, or the ADEA bill, employers are not allowed to discriminate when hiring and firing employees or make any provisions in terms or conditions of employment if the employee is age 40 or older. There is no protection under this law for any employee who is age 39 or younger.
The Age Discrimination in Employment Act was passed in 1967, and this 40 year old only applies to businesses that employ at least 20 people. Any person who believes that they have been discriminated against because of age, and is able to prove such discrimination, is entitled to received damages.
The damages that can be requested in an age discrimination case can include any loss of income, an award for emotional distress, and the reimbursement for legal fees incurred in taking the case to court. In addition, the judge hearing the case has the latitude under the Federal law to double the amount of damages actually awarded and some state laws even allow for a tripling of damages.
However, proving the act of age discrimination can be a difficult task to do and the middle age or senior person who finds themselves in a situation where they believe they are being discriminated again has the burden of proving it in court. In order to prevail in such a case the employee must be able to show that there was some adverse action taken against them that was based on their age.
Adverse action because of age discrimination can include much more than termination of employment. It can also include situations such as an employee being passed over for a promotion or being denied a raise or cost of living adjustment, when it is claimed that this was brought about because of the middle age or senior age of the person. In addition, discrimination could be found in situations of a negative environment in the workplace or an unfair assignment of duties or clients if the root is because of the age of the employee.
The act of simply replacing an older employee with someone who is younger is not sufficient evidence to prove age discrimination. Nor does replacing a senior employee who earns a higher salary with a less experienced, and younger, employee who is at a lower earning level mean that an illegal act has occurred. The bottom line is that in order for an employer to be liable in an age discrimination case, it must be shown that an intentional adverse action was taken based on the age of the employee.
Tags: age, Age Discrimination, aging, aging population, Aging Process, Retirement
Those of us old enough to be affected are quite aware of this ubiquitous practice of age discrimination. It’s a ‘given’.
What we also know is that to simply discuss it solves nothing. We have been ‘discussing’ the illegality, the unjustness, the overwhelming loss to society because of it, for far too long. What we also know is that litigation in the current (US) environment isn’t going to happen without very deep pockets on the part of the plaintiff.
Therefore, it appears to me that the most efficient course to pursue is one in the ‘court of the public prevue’. To that end, I am gathering info, reliable info, in order to present a series of articles on the current state of American Age Discrimination.
To that end, I am NOT looking for information regarding instances of age discrimination — we all have those. There are millions of them.
At this point in the discovery, I am seeking to hear from those who have been on the ‘other side of the table’; those who have been involved in the hiring process, or a part of it; and, who have seen, witnessed, been part of age discrimination as it took place in the course of the hiring function.
I know that for every case of age discrimination, there are at least two participants. The one fouled, and the ‘fouler’. I am looking to hear from the ‘fouler’.
I also know that age discrimination occurs blatantly, and it occurs far-less-blatantly. It can be an avoidance behavior or action. It can be an ‘unspoken’ practice. It can be a masked process, covered up by a set of guidelines or prescribed set of rules that can’t be declared biased individually, but when looked at in a broader context, create the same results. There may be a number of rationales; but rarely do any of them stand the test of reality when objectively challenged. It is these ‘hidden’ or ‘unspoken’ practices that I seek to gain knowledge of.
You might be thinking, “Why would someone indict themselves?” Well, it’s not always the case. I believe that many times, one employee is required to follow policies that are not ‘right’, but they haven’t any say in whether they are required to follow and abide by those erroneous acts. We know that those people will probably move on to other work, other employers, or even leave the workforce in time. Once they leave that employer, they may very well be willing to provide insight and factual information of how the illegal and unethical practices are carried out. (I believe there are still a few people out there who believe in doing ‘the right thing’.)
If you would like to participate in my research and discovery, you can email me at reporterdiscovering@gmail.com.
Hope to hear from you soon.
Thank you very much for your very incisive observations. I agree, that enforcement through the courts is problematic. The affected former or prospective employee rarely will have deep enough pockets to undertake all that this complex sort of litigation entails.
I hope you can find people who’ll come forward from the ranks of employers who have experienced having their hands tied by blatant discriminatory policies masked in euphemisms along the lines of “overqualified”. I would be willing to bet there are a lot of folks who’ve found themselves feeling very uncomfortable sitting in the employer’s chair and having to administer discriminatory policies.
I wish you well, but, at the same time, know you’re fighting an uphill battle.