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Age Discrimination in the Workplace

Workplace age discrimination claims have soared over the years. This type of discrimination involves treating a job applicant or employee less favorably because of his or her age. The conduct may arise in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other employment setting or condition.

Age discriminationThere are two main conduits to age discrimination. It can occur through workplace harassment or through a discriminatory employment policy or practice. For example, in 2012, a 54-year-old office coordinator of a Honolulu-based health care company won a $193,236 age discrimination judgment in U.S. District Court. Her employer had fired her in 2008 despite excellent performance and had made disparaging remarks about her to other employees, such as that she looked “like a bag of bones” and “sounds old on the telephone.” (EEOC v. Hawaii  Healthcare Professionals, Inc. a/k/a Hawaii Professional HomeCare Services,  Inc., Case No. CV-10-00549 BMK).

The harasser is not limited to being a company owner or employee supervisor. It could also be a co-worker, contractor, and even a customer. Typically, persons who are 40 years old or older are protected from this type of discrimination, regardless of the age of the offender. Although not allowed under federal law, claims of reverse age discrimination by younger employees are not disallowed under Florida law.

Federal laws regulating age discrimination

The Age Discrimination in Employment Act (ADEA) is a federal law enforced by the Equal Employment Opportunity Commission (EEOC), and it prohibits age discrimination against employees who are 40 years old or older. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

ADEA applies to employers with 20 or more employees (including federal, state and local governments, employment agencies and labor organizations.) Its protections include:

  • Apprenticeship Programs – Subject to specific ADEA and EEOC exemptions, an employer may not use age limitations in apprenticeship programs.
  • Job Notices and Advertisements – An employer may not include age preferences, limitations, or specifications in job notices or advertisements unless an age limit is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.
  • Pre-Employment Inquiries – Although an employer may ask an applicant for his or her age or date of birth, requests for age information are closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
  • Benefits – The Older Workers Benefit Protection Act (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to employees over 40 years old. In certain circumstances, OWBPA allows employers to reduce benefits to older employers, as long as the cost of providing such benefits in no less than the cost of providing benefits to younger workers.

ADEA and Age Discrimination through an Employment Policy

Under the ADEA, an employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a “reasonable factor other than age” (RFOA). When an employee presents an ADEA age discrimination claim, the employer may raise an affirmative defense by offering RFOA proof.

An RFOA “non-age factor” is “objectively reasonable” when viewed from the position of a prudent employer mindful of its responsibilities under ADEA. Employers may encounter challenges with the “objectively reasonable” standard. To establish the RFOA defense, an employer must show:

  • That the employment practice was both reasonably designed to further or achieve a legitimate business purpose; and
  • That it was administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known (or should have been known) to the employer.

Among the non-exclusive list of considerations that the EEOC considers relevant in determining whether an employment practice is consistent with the RFOA standard are:

  • The extent to which the factor is related to the employer’s stated purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practices on older workers; and
  • The degree of harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

Also, the presence or absence of any listed consideration does not necessarily determine whether the defense applies. The overall determination relies on the totality of circumstances of any given situation.

Age Discrimination through Harassment

Harassing someone about his or her age is illegal when its frequency and severity creates a hostile or offensive work environment, or when it results in an adverse employment decision against a person (such as the victim being fired or demoted.)[1]

State and local laws regulating discrimination

The Florida Civil Rights Act (FCRA) makes it illegal for an employer to discriminate on the basis of age, among other factors. For this type of discrimination, the statute covers employers with 15 or more employees, and therefore, it affects smaller employers not covered by federal law. The Florida Commission on Human Relations (FCHR) is the state agency overseeing discrimination.

Employers should also be aware of local ordinances that may impose additional requirements on employers within the locality. For example, a City of Orlando’s anti-discrimination ordinance applies to employers with 5 or more employees working more than 30 hours per week, or more than 10 employees, irrespective of the number of hours worked per week. It makes it illegal to discriminate against an individual based on age, among other factors. The City of Orlando’s Human Relations Review Board is responsible for evaluating complaints.

Reverse Age Discrimination

Reverse age discrimination claims are premised on the belief that an employer has given preferential treatment to an older person over a younger one. Applicants and employees under the age of 40 cannot make reverse age discrimination claims under the ADEA. This is so, even when doing so adversely affects a younger worker.

However, under Florida state law, the FCRA protects persons of any age against age discrimination. Therefore, there is an argument that anyone, of any age, could raise a reverse age discrimination claim under the FCRA.

Waivers of ADEA Rights

A potential issue of waiving ADEA rights may occur when employees over 40 years old are offered a severance agreement including a waiver or release. In this situation, the provisions of the federal Older Workers Benefits Protection Act (OWBPA) apply. The OWBPA, which is part of the ADEA, requires employers to follow specific provisions to secure a valid release from any age discrimination employee claims.  Under the OWBPA, the employee release must be “knowing and voluntary” and satisfy specific requirements.[2]

Recovery

Under the ADEA, a plaintiff can recover attorney’s fees, back pay, and reinstatement or front pay. However, the ADEA does not allow the recovery of compensatory (e.g., emotional distress) or punitive damages. In cases in which the employer commits a “willful violation” of the ADEA, the plaintiff can also recover liquidated damages equal to the amount of his or her back pay award. In addition, Florida state law does not limit the compensatory damages recoverable for a discrimination claim, although punitive damages are capped. Injunctive and/or affirmative relief (e.g., to stop employer’s actions and/or make the injured employee whole) may also be available. For additional information, see the Damages in Discrimination Claims blog article.

Processing a Discrimination Claim

Due to the specific processes that must be followed and the applicable time limits for agency and court filing, it is in an employee’s best interest to become informed, including engaging the assistance of an attorney to assist in their discrimination matter.  An employer facing the defense of a discrimination claim should engage legal counsel to prepare for forthcoming administrative inquiries and potential litigation.  For more information on processing and managing a discrimination claim, see the Processing Claims with the EEOC and Processing Claims with the FCHR blog articles.

Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing an age discrimination situation and offer legal representation, if necessary. Click here to contact an attorney now.

[1] The Harassment in the Workplace blog article provides additional information.

[2] The topic of Employment Severance Agreements is discussed in a separate blog article.

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