Age Discrimination in the Workplace
|
Both Massachusetts law and federal law prohibit employment discrimination against older workers. An "older" worker under the law is age 40 or above, as defined in the statutes years ago. Most commonly, however, we see concerns about age discrimination begin to appear in employees who are over 50.
Employees in this age range face a potential double discrimination penalty- if they are pushed out of a job due to their age, they are also at a disadvantage in finding a new job for the same discriminatory reasons. Age Discrimination DefinedAge discrimination in employment is the unfavorable treatment of someone based on their age. This protection only applies if you are over 40 years old. This means it is not unlawful to have a bias against a younger employee based on age, but it is to hold that bias against an older employee.
Age discrimination could arise in the context of decisions to hire, promote, discipline or terminate an employee. Disparate treatment is a direct form of discrimination, in which an older individual is treated differently from younger employees. An example would be the promotion of a younger person over an equally qualified older worker, or discipline or termination of an older employee for infractions that are not applied equally to others. Disparate impact is another form of discrimination. In this scenario, rather than behavior targeted at an individual based on their age, an employer might have policies or practices which disproportionately impact older workers, even though they appear neutral on their face. Examples could include physical requirements not truly needed to perform the job, or expectations around new technology that are more difficult for older employees to achieve. |
Need Help With a Discrimination Issue?OR
|
Recognizing Age Discrimination
Unlike some other forms of discrimination, age discrimination is usually not about hostility or animosity toward older workers. Instead it is more often related to economics (an employee with seniority is often making a higher salary than younger workers), concerns about employees being able to keep up with changes in the workplace, and sometimes concerns about having to deal with the increasing likelihood of health issues. And sometimes there is simply a disconnect between the style and approach of a younger manager and that of an older worker.
None of that makes age discrimination lawful, but it does make it more subtle and sometimes more difficult to prove.
For example, in most cases a decision based solely on economics, like laying off the most expensive employees, will not automatically be considered age discrimination. However, if it is coupled with a disproportionate impact on older workers, or accompanied by other factors, it could be part of the proof of age discrimination.
You should also look for comments about age or health made by a decision-maker. Examples include repeated questions about when an employee is going to retire, direct comparisons to younger workers, or remarks that suggest negative assumptions about an older employee's ability to work with technology.
None of that makes age discrimination lawful, but it does make it more subtle and sometimes more difficult to prove.
For example, in most cases a decision based solely on economics, like laying off the most expensive employees, will not automatically be considered age discrimination. However, if it is coupled with a disproportionate impact on older workers, or accompanied by other factors, it could be part of the proof of age discrimination.
You should also look for comments about age or health made by a decision-maker. Examples include repeated questions about when an employee is going to retire, direct comparisons to younger workers, or remarks that suggest negative assumptions about an older employee's ability to work with technology.
The Age and Disability Overlap
The laws separately protect against discrimination on the basis of age or disability or perceived disability, but sometimes the two overlap. An employee in his late 50's may never have experienced any bias based on his age until he has to go out on medical leave for a health condition. Upon his return, he may find his employer more focused on his age than before, as the health issue may have brought that distinction into focus.
In this regard, it is important to know that you are protected from discrimination based on actual or perceived disability. For an older worker recovering from a health issue, the employer may make assumptions abut their continued ability to do their job that is based both on the fact that they had a medical problem and their age. If you are terminated, demoted, or otherwise experience adverse employment action in such a situation, you should explore the possibility of both age and disability discrimination with an employment attorney.
In this regard, it is important to know that you are protected from discrimination based on actual or perceived disability. For an older worker recovering from a health issue, the employer may make assumptions abut their continued ability to do their job that is based both on the fact that they had a medical problem and their age. If you are terminated, demoted, or otherwise experience adverse employment action in such a situation, you should explore the possibility of both age and disability discrimination with an employment attorney.
Age Discrimination and Severance Agreements
Federal age discrimination laws have specific requirements that apply to severance agreements that purport to release age related claims. Specifically:
- You must be given at least 21 days to consider the agreement before signing. You can sign it earlier, but an offer that requires a shorter time period violates the law.
- You must be given seven days after signing to revoke the agreement.
- If you are let go as part of a larger layoff or reorganization, the employer must provide you with a disclosure of the positions (and ages of the people holding them) that were eligible for the layoff, and identify who was and was not laid off.
The disclosure that is required can be confusing if you do not know what you are looking at. It does not have to require people by name, just position, age, and whether they were included in the layoff. It might look like this:
The seven day revocation period is useful if you have not had a chance to speak with an attorney before the deadline for signing, and do not want to lose the opportunity for the severance offered. However, you should know that if you sign and then try to negotiate within the seven day period, you are in a much weaker position than if you start the conversation before the 21 day deadline. This is why it is important to seek legal advice early in the process, so you can evaluate whether you have a viable age discrimination claim and compare that to what is being offered in severance.
The seven day revocation period is useful if you have not had a chance to speak with an attorney before the deadline for signing, and do not want to lose the opportunity for the severance offered. However, you should know that if you sign and then try to negotiate within the seven day period, you are in a much weaker position than if you start the conversation before the 21 day deadline. This is why it is important to seek legal advice early in the process, so you can evaluate whether you have a viable age discrimination claim and compare that to what is being offered in severance.
Time Limits for Discrimination Claims
In most situations, the statute of limitations for discrimination lawsuits, including age discrimination, is 300 days, or approximately 10 months. You may see articles on the internet that say the deadline is 180 days or six months. This is true under federal law but in Massachusetts you have some additional time even for federal claims.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16, 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21, 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court before the three years are up.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16, 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21, 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court before the three years are up.
How Our Employment Lawyers Can Help
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination or other instances of discrimination. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
