Age discrimination in the workplace has become increasingly more common as baby boomers in the workforce grow older. A 2013 survey by AARP found that two-thirds of workers between the ages of 45 and 74 said they have seen or experienced ageism, and an overwhelming 92 percent considered it common.
Although employers are generally not allowed to hire, fire or decide on employee compensation based on age, it can be difficult to tell if a company’s actions are based on discrimination or the belief that someone else is better suited to the job at hand. Fortunately, there are federal and state laws that protect employees from ageism at work and procedures to help victims assert their rights.
Federal Laws Provide Protection
The Age Discrimination in Employment Act (ADEA) was established in 1967 to protect individuals 40 years of age or older from employment discrimination based on age. The ADEA applies to employers with 20 or more employees, including federal, state and local governments as well as employment agencies and labor unions. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older workers.
Under the ADEA, it is unlawful to discriminate against a person because of his or 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's protections apply to both employees and job applicants.
Examples of potentially unlawful age discrimination include:
Not getting hired because the employer wanted someone younger to do the job.
Getting fired because the company wanted to keep younger workers who were paid less.
Being turned down for a promotion that went to someone younger hired from outside the company.
When a company institutes layoffs, most of those let go are older while younger workers with less seniority are kept on.
Age-related remarks are made by an employer during a job review, hiring interview or prior to being fired.
New Jersey’s Law Against Discrimination
Many states also make it illegal to discriminate on the basis of age. The New Jersey Law Against Discrimination (LAD) makes it illegal for an employer to discriminate on the basis of age, race, creed, religion, color, national origin, physical or mental disability, nationality, ancestry, marital status, sexual orientation, sex, gender identity or expression, or liability for military service.
New Jersey’s age discrimination law differs from the ADEA in several significant ways. For example, in New Jersey there is no company employee minimum to file a claim. The state law also protects workers under age 40. Employees 70 and older cannot bring an age discrimination claim for failure to hire, but they may bring an age discrimination claim for other forms of discrimination. In addition, all workers who prevail in age cases may recover compensatory and punitive damages. This is not allowed under federal law.
Discrimination claims can be filed either with the state administrative agency, the New Jersey Division on Civil Rights (DCR); or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary as long as you indicate to one of them that you want the claim cross-filed.
If you are age 40 or older have been harmed by a decision affecting your employment, you may have suffered unlawful age discrimination. We handle complex employment law matters in New Jersey and are here to provide counsel on your rights. Please call me with your questions or concerns at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.