In the first article, we covered discrimination in the workplace due to race, color, gender, religion and national origin. This article will address age discrimination or ageism.
Age Discrimination Under Federal Law
The Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§621-633 makes it unlawful for an employer to refuse to hire; to discharge; or to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual’s age. Age discrimination can also take the form of workplace harassment if the incidents are so frequent or severe to constitute a hostile work environment (see Part I for discussion on hostile work environment). The harasser can be a supervisor, a co-worker, or even a client of your employer.[1]
Like other illegal discrimination, a company policy that applies to everyone, but negatively impacts employees due to age may still be illegal, as long as the policy is unnecessary to the operation of the business. For example, if your employer implements a policy that all workers must be able to type a certain number of words per minute, that policy would likely impact older employees disproportionately because they may not have learned to type and did not grow up using computers. If all of the employees who are impacted by this neutral policy are over 40 years old and are terminated, then the policy may be illegal. But, that would only be the case, if typing was not necessary to operate the business. So, if the policy was implemented at a factory for assembly line workers, it would likely be illegal. If it was implemented at a publishing company, it would most likely be legal.
How old do you have to be to sue under the ADEA? Not very old! 40 years-old is the threshold to bring an ADEA claim. The ADEA only applies to employers with more than 20 employees. To prove an ADEA claim, however, a plaintiff must prove that the younger person who got the job, the raise, the benefits, etc…was “substantially younger”, which courts have found to mean, at least 7 years younger.
Exhaustion of Administrative Remedies
Like other federal employment laws, a plaintiff must first file an ADEA charge with the EEOC within 180 days[2] of the discrimination, before filing a lawsuit. Unlike other federal laws, however, a plaintiff need only wait 60 days after filing with the EEOC before filing a lawsuit.
What do you have to prove? Causation Requirements
The ADEA, unlike Title VII claims, requires “but-for” causation. In other words, a plaintiff must prove that but-for his or her age, the employer would not have taken adverse action, such as firing, demoting, or creating a hostile work environment.
What can you get for an ADEA violation? Damages
A violation of the ADEA entitles a plaintiff to compensatory damages in the form of back pay, reinstatement, front pay (if reinstatement is inappropriate), liquidated damages (for willful violations) calculated by doubling the plaintiff’s award, and attorney’s fees.
What can’t you get for an ADEA violation?
Emotional distress or non-economic damages are not available under the ADEA. Punitive damages are also not available under the ADEA.
State Law Claims for Age Discrimination
The Pennsylvania Human Relations Act
If you are employed in Pennsylvania by an employer, employment agency or labor organization, which employs more than four employees, the Pennsylvania Human Relations Act (“PHRA”) protects you from discrimination based on age.[3] Unlike the ADEA, however, a claim under the PHRA does not give a plaintiff a right to a jury trial. For that reason, PHRA claims are usually brought alongside ADEA claims.
To bring a PHRA claim, a plaintiff must first file with the Pennsylvania Human Relations Commission (“PHRC”). The PHRC has one year to investigate the charge. A plaintiff can only file a lawsuit after the PHRC has dismissed the complaint, but the lawsuit must be filed within two years of the dismissal by the PHRC.
Claims under the PHRA have a lower burden of proof than ADEA claims. A plaintiff may prove discrimination if age was a motivating factor in the adverse employment action.
Why file with the PHRC if the wait is so long?
Damages. A plaintiff can recover unlimited non-economic damages under the PHRA, which are not available under the ADEA.
New Jersey Age Discrimination Claims
Under New Jersey’s Law Against Discrimination (“LAD”), an employee can skip the administrative process and file a suit directly in state court. If a plaintiff wants to combine an LAD age discrimination claim with an ADEA claim, then the plaintiff will still have to file with the EEOC and wait 60 days.
Unlike Pennsylvania and Federal law, New Jersey LAD prohibits age discrimination for both younger and older employees. There is a ceiling for a New Jersey age discrimination claim under the LAD. If you are 70 years or older you cannot bring an age discrimination claim under New Jersey law.
Local Ordinances Prohibit Age Discrimination
Philadelphia’s Fair Practices Ordinance
The City of Philadelphia prohibits any employer, employment agency, or labor organization doing business in Philadelphia from engaging discrimination against employees due to age.
To bring a claim under the Philadelphia Fair Practices Ordinance, you must file a complaint with the Philadelphia Commission on Human Relations within 300 days of the violation. The Commission must investigate the complaint within 30 days and complete its investigation within 100 days. Either party can appeal the Commission’s findings or notice of inaction within 30 days and bring a lawsuit in State or Federal Court.
The Philadelphia Commission on Human Relations will not accept a complaint if the same complaint was filed with the PHRC.
Back pay, compensatory damages and punitive damages (limited to $2,000 per violation) are available under the Philadelphia Fair Practices Ordinance, however, the Ordinance does not expressly provide for a jury trial.
The Washington DC Human Rights Act
The DC Human Rights Act protects employees from age discrimination in the workplace by employers, employment agencies or labor organizations in the District of Columbia, if the employee is 18 years or older.
An employee or job applicant who has suffered discrimination must elect to bring his or her claim to the DC Office of Human Rights within one year of the violation or may file a lawsuit within one year of the violation. If the employee files with the DC Office of Human Rights, the employee will not be able to bring a lawsuit. Instead, a mediation between the parties will be scheduled before any investigation is conducted. The DC Office of Human Rights must complete its investigation within 120 days of the filing of the Complaint. If the Office finds probable cause of a violation, then a hearing is scheduled before three commissioners. The commissioners may order reinstatement, back pay, front pay, compensatory damages and award attorney’s fees and costs. The commissioners’ findings may be appealed to the District of Columbia Court of Appeals.
The same relief available in the administrative hearing is available if a private lawsuit is filed instead.
In the next article, we will look at equal pay in the workplace.
If you have any questions or would like to speak to an attorney regarding a claim based on any of the subjects discussed above, contact Klaproth Law PLLC for a free consultation.
Klaproth Law PLLC handles most employment discrimination cases on a contingency fee basis, which means we don’t get paid, unless you recover.
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This article is solely for educational and informational purposes and should not be construed as legal advice, nor should it be construed as a substitute for advice of counsel. The article is also written as a broad overview of the law and is not an exhaustive examination of any of the topics addressed. Klaproth Law PLLC recommends that all readers seek specific advice from Klaproth Law PLLC about their particular legal issues.
[1] https://www.eeoc.gov/laws/types/age.cfm
[2] That time period is extended to 300 days in Pennsylvania, but claims under the Pennsylvania Human Relations Act must still be brought within 180 days of the discriminatory conduct.
[3] http://www.phrc.pa.gov/Resources/Law-and-Legal/Pages/The-Pennsylvania-Human-Relations-Act.aspx#.WN1fwaIjX4Y
