Discrimination due to age is one of the great tragedies of modern life. The desire to work and be useful is what makes life worth living, and to be told your efforts are not needed because you are the wrong age is a crime.
- Johnny Ball
It is no secret: America's workforce is aging. The increase in older people working has been followed by an increase in age discrimination. Employers have shown a bias against people 40 years or older. Fortunately, workers in Alabama and throughout the United States are protected against age discrimination. The Age Discrimination in Employment Act of 1967 (ADEA) and the Alabama Age Discrimination in Employment Act (AADEA) were passed to protect older workers from employers who give unfair and favorable treatment to younger employees. Some employers ignore the abilities of older workers and rely, instead, on stereotypes based upon age. Older employees are skipped over for promotions, benefits, and preferable job assignments, ignored in the hiring process, or laid off in favor of younger workers who will accept lower wages. Employees are even harassed about their age to the extent it interferes with their ability to perform their jobs. It is unlawful to engage in such conduct, and our experienced attorneys hold employers who violate the law accountable.
At Haynes & Haynes, our employment lawyers based in Birmingham, Alabama, are dedicated to helping clients who have experienced age discrimination. Through fact-finding, discovery, strategic pleadings, and negotiations, our attorneys succeed where others may fail. If you think an employer has discriminated against you based on your age, contact us at (205) 879-0377 to schedule a consultation and to learn more about any legal options available to you.
What Constitutes Age Discrimination?
Age discrimination occurs when an older applicant or employee is treated less favorably than a younger applicant or employee based on age. It is not illegal for an employer to favor an older worker over a younger one; the ADEA and AADEA only apply to discrimination against individuals over 40 years of age. The employer or person acting on behalf of the employer (e.g., a supervisor, manager, or human resources personnel) can be 40 years old or older, too – the employer's age does not matter. What matters is that the victim is 40 years old or older and has suffered discrimination based on the latter fact.
The laws forbid discrimination with regard to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment. Age discrimination is not always obvious. An employment policy or practice that applies to everyone, regardless of age, can still be illegal if it has a negative impact on applicants or employees aged 40 or older and is not based on a reasonable factor other than age.
It is also unlawful to harass a person because of his or her age or create a hostile work environment because of age. Harassment can include, for example, offensive remarks about a person's age. While the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe as to create a hostile or offensive work environment or when it results in an adverse employment action, such as being fired or demoted. When hard-working Alabama men and women are harassed because of their age, workplaces become hostile. The victim's job performance may suffer, as does his or her emotional well-being.
Specific Legal Protections
The ADEA includes specific statutory protections for:
- Discrimination in apprenticeship programs;
- Preferences, limitations, and age specifications in job notices and advertisements;
- Using questions related to age and scrutinizing a job candidate about age or retirement plans during the application, hiring, and pre-employment process; and
- Denying benefits to older workers based upon age.
Waivers of ADEA Rights
Under certain circumstances, an employer can ask you to waive or release your rights under the ADEA. In order for such a waiver to be considered valid, it must be voluntary and meet certain statutory requirements:
- The waiver must be clear and written in language which can be understood by the average person;
- The waiver must specifically refer to your rights or claims under the ADEA;
- You may not be asked to waive rights or claims that may occur in the future;
- You must be advised that you have the right to consult with an attorney of your choosing before signing the waiver; and
- You must be given no less than 21 days to consider the waiver before you sign it, and at least 7 days to revoke the agreement after you sign it.
"At Will" Employment and Your Rights
Many people know that Alabama is an "at will" employment state. "At will" simply means that, unless you have a written contract or are a member of a union, an employer can terminate your employment "at will," that is, for a good reason, a bad reason, or no reason at all. However, the employer may not exercise that right in violation of the law. You cannot be fired because of your age (or any other protected characteristic, including race, sex, gender, disability, religion, or national origin). The "at will" doctrine does not give employers a license to use your age to force you from your job. That is illegal, even if you are an "at will" employee.
Are all Employers Subject to ADEA?
Most employers are subject to ADEA, including:
- Companies with 20 or more employees
- Employment agencies
- Local government employers
- State government employers
- Federal government employers
- Labor organizations
Examples of Age Discrimination
Age discrimination can take different forms. Sometimes the discrimination is overt, while other times it is disguised as something else. The following are some examples of age discrimination:
Comments, Jokes, or Insults Regarding Age
Management and co-workers may demean older workers when they make age-related comments, like “Ok, Boomer!” These types of comments, if consistent and regular, can create a hostile work environment that could be considered harassment. “Ok, Boomer!” however, is not enough on its own. The comments, jokes, and insults must be abusive and severe to be discriminatory.
Loss of Promotion Due to Age
Often what happens when age discrimination is at play is a younger, less qualified employer will get a promotion. Meanwhile, the more qualified but older employer is passed over for the promotion.
Hiring Only Younger Workers
Age discrimination can occur even during the hiring process. When a company has a record of hiring only young employees, it may be evidence of discrimination.
Employers discourage employees from discussing their salaries, but word gets around, especially when certain people are getting raises or promotions and others are not. If you have a coworker in the same role as you with similar experience but who is paid more, it could indicate discrimination. Look to see what your coworker's age, race, religion, or gender is compared to your own.
Unjust Disciplinary Action
Unfair criticism or discipline (like demotion or pay cuts) may indicate a supervisor is trying to create a paper trail to disguise any age-based discrimination.
Advertising Specifically Geared for Younger Workers
Companies cannot use advertisements to discriminate. Advertisements must be free from a preference for younger employees or an avoidance of older employees.
What Should Employees Do if Discriminated against Based on Age?
If you are an employee and you feel that you have been discriminated against due to your age, there are certain steps to take immediately:
- Keep a detailed log of all potentially discriminatory incidents, and include dates, time, location, and names (both the discriminator and any witnesses).
- Talk to your manager or supervisor.
- If talking to your manager fails, report discrimination to Human Resources.
Prior to filing a lawsuit, keep in mind you will first need to file a complaint with the EEOC. Our attorneys can help you file this complaint and, if necessary, file a subsequent lawsuit.
How We Can Help
At Haynes & Haynes, we understand you have worked hard, been a loyal and dedicated employee, often putting in years at your job to support yourself and your family and helping your employer thrive. It is unacceptable for your employer to discriminate against you because of your age or its perception that older workers have no place or value in the workplace. We know that it can be intimidating and difficult to stand up for yourself against your current or former employer. That is why we are here. We have experience dealing with employers who violate the law and we do not back down, no matter how sizeable the opponent. We know how to gather the facts to support your case and get you the compensation you deserve. If you believe you are the victim of age discrimination in your workplace or have been fired or laid off due to your age, contact our attorneys today by using our online form or calling us at (205) 879-0377 to discuss your situation. The consultation is always free.