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Working After 40: Knowing When Age Discrimination Has Occurred

Anyone who has been laid off or fired from a job knows all to well how difficult it is to bounce back, and there are a great deal of issues that they will likely face. However, the worries of being laid off or terminated are generally much worse when the employee is over 50. For people over 50, the prospect of finding a job late in life is frightening.

Empirical studies have shown that age discrimination exists, even though it is often times subtle and hard to prove. Nonetheless, it is important to know how to recognize what age discrimination looks like and what to do if you believe you are a victim of it.

The Age Discrimination in Employment Act of 1967 (ADEA) was created to protect employees who are over 40 years of age or older from employment discrimination based on age. Ultimately, the ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations, and the federal government. The actions that are dealt with by this Act are discrimination actions or policies dealing with discharges, job assignments, leave or benefits, licensing, retirement benefits, hiring, pay, promotion, training, among others.

That is what the ADEA says, but that does not mean that everyone is protected under this Act. As mentioned above, the law protects people who are 40 years old and older; individuals under 40 are not protected. While this may seem unfair to younger employees, employers can legally give hiring preferences to older workers, due to more experience.

Additionally, employers can discriminate on age in other circumstances. For instance, an employer can implement “age distinctions,” which set a maximum age for jobs involving hazardous conditions or other physical dangers. Examples of these policies are often found in law enforcement or firefighting. Employers can also discriminate on age based on state or federal statutes. Such a statute exists for school bus drivers, which mandates that a person much be between 18 and 70 years of age to meet certain Wisconsin Department of Transportation standards. Furthermore, state and federal laws do not prohibit involuntary layoffs affecting older workers. However, it is important to note that employers may not target people specifically for their age when deciding whom to let go, nor can they layoff individuals based on their eligibility for pension benefits.

A common question regarding what is and is not age discrimination deals with waning performance. Poor performance is not necessarily relating to an increase in age, but regardless of age, employers can expect that all workers meet a certain standard for their work. Employers are not required to accommodate people solely because of age. However, if poor performance is linked to a disability due to an increase in age, employers may be required to make a reasonable accommodation so that certain job functions can be adequately performed.

Another common concern involves job rejections due to a person being “overqualified” for a job. This may be a sign of age discrimination. It is unlawful for employers to not hire, or give equal weight to, an experienced worker based on an assumption that an older worker might be bored at work or dissatisfied with their position and quit their job.

People who believe that they have been discriminated against have 300 days from the date of the alleged discrimination action to file a complaint. Proving an age discrimination claim requires the proof of four standards:

  1. That he or she is 40 years old or older;

  2. That he or she was qualified for or was satisfactorily performing the job;

  3. That some adverse employment action was taken;

  4. That a younger worker was selected for the position or was treated more favorably.

If these four factors are met, the employer will have an opportunity to explain that the action was not a result of age discrimination.

Knowing when age discrimination is taking place is not easy, and proving it can be just as difficult. However, if you believe that you have been a victim of age discrimination, get in touch with an attorney right away. Our legal team at Levine Eisberner LLC will help you determine if you have a claim.


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