Discrimination based on Age
A large percentage of our discrimination cases at the Law Offices of Archibald J. Thomas, III, P.A. involve discrimination due to age. Moreover, in cases involving discrimination based on age there are often other potential claims present such as claims arising under ERISA or claims based on disability. Our lawyers have the background and training to be able to identify all possible claims related to issues faced by older workers. If you need advice regarding a potential legal claim or are faced with a decision regarding whether to provide an employer a full and complete release of liability in connection with a severance pay agreement, give us a call at 904-396-2322 to schedule an appointment so we can answer your questions before you relinquish any valuable legal rights you may have.
Age Discrimination Overview
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. ADEA protections include:
Apprenticeship Programs It is generally unlawful for apprenticeship programs, including joint labor management apprenticeship programs, to discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.
Job Notices and Advertisements
The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.
Pre Employment Inquiries
The ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be 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 of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state sponsored health benefit.
Waivers of ADEA Rights
An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must: 1. be in writing and be understandable; 2. specifically refer to ADEA rights or claims; 3. not waive rights or claims that may arise in the future; 4. be in exchange for valuable consideration; 5. advise the individual in writing to consult an attorney before signing the waiver; and 6. provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it. If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.
Florida Law Against Age Discrimination
It is important to note two major differences between Florida law and federal law under the ADEA with regard to the protection against age discrimination. First, Florida law does not have a minimum age limit of 40 like the ADEA. There is no minimum age limit under Florida law. Second, Florida law only requires an employer to have 15 employees, not 20 like the ADEA. There are other differences between federal and state law that may be important as well. At the Law Offices of Archibald J. Thomas, III, P.A. we can discuss these differences with you so that you will be fully informed regarding the best options available. Contact us if you would like to discuss your rights and protections regarding the laws prohibiting discrimination on the basis of age.