If you believe you have been discriminated against because of your age, and you want to pursue a lawsuit against your employer, you should have a basic understanding of what the process entails.
This article discusses the legal process of filing an age discrimination lawsuit and how an experienced employment lawyer will help you in your case. (For information on age discrimination in general, see Your Rights Against Age Discrimination.)
The federal Age Discrimination in Employment Act (ADEA) bars employers from discriminating against workers who are 40 years old and over. Under the ADEA, employers may not treat a worker who is under 40 more favorably than a worker who is over 40 based on age.
The ADEA also prohibits employers from discriminating among workers who are 40 and older. For example, an employer cannot treat a 44-year-old employee more favorably than a 60-year-old employee simply because of their ages.
The ADEA protects older workers from discrimination at all stages of the hiring process and employment relationship, from job announcements to terminations.
The ADEA also bans discrimination against older employees in terms of fringe benefits, such as health insurance, disability insurance, and retirement plans. In general, this means that employers must offer equal benefits to older and younger workers.
Several states have their own laws that prohibit age discrimination in employment, some of which provide greater protections than the ADEA or allow plaintiffs to seek a wider set of damages than the ADEA.
The process of suing your employer for age discrimination can be complex, lengthy, and time-consuming. In most cases, you will need an employment lawyer to represent you and help you achieve the best outcome. The following are the stages of the process that you can expect to go through.
Before filing an age discrimination lawsuit in court, you must first file an administrative complaint with the Equal Employment Opportunity Commission (EEOC), which is the agency that enforces federal antidiscrimination laws. Filing a charge with the EEOC is a prerequisite to filing a discrimination lawsuit. Your state may have its own agency for enforcing state age discrimination laws, in which case you may have to file a complaint with the proper state agency as well.
Once you file a claim with the EEOC, it will investigate your complaint, typically by contacting your employer, interviewing witnesses, and reviewing other evidence. When the EEOC has completed its investigation, it will usually issue a right-to-sue notice, which means that you have 90 days to file a lawsuit.
Unlike other discrimination claims, you don’t have to wait for a right-to-sue notice in order to file an age discrimination lawsuit. You can file your lawsuit at any time after 60 days from the date you filed your charge. An employment lawyer will keep track of these deadlines and file the appropriate paperwork.
Once you’ve met the administrative claim requirements described above, you can file a complaint in court. A complaint is a legal document that explains the basis of your age discrimination lawsuit and what damages you are seeking. This is the official beginning of your age discrimination lawsuit.
After you file your lawsuit, both sides will conduct discovery. Discovery is the phase of a lawsuit where the parties, or more likely their attorneys, take recorded statements from witnesses (called “depositions”), request documents, ask written questions to the other side (called “interrogatories”), and otherwise gather evidence to use at trial.
Your employer will most likely have a lawyer to represent its interests and defend against your claims. The defense lawyer will take your deposition during the discovery phase, which is very similar to testifying in court (because you will answer questions under oath and everything will be recorded in a transcript).
If you have a lawyer, he or she will attend the deposition with you and make sure that all of the questions asked are appropriate. Your lawyer will also take depositions of the individuals who took the discriminatory actions against you. Your lawyer may also take depositions of other individuals, such as younger workers who were treated better by your employer.
At some point after you file the EEOC complaint and before you go to trial, you will have an opportunity to try to settle your case, usually with the aid of a third-party, such as a mediator. In many cases, the parties will voluntarily agree to participate in mediation (though it can also be mandated by the court).
During mediation, the parties get together for an informal conference to try and negotiate a settlement agreement. If you have a lawyer, he or she will represent you in the mediation, explain the relative strengths and weaknesses of your case to you, and help you formulate settlement offers. Your employer's lawyer will respond with counter settlement offers, until the parties can hopefully reach an agreement.
Unlike a trial, though, mediation does not result in one side “winning.” Instead, if the mediation is successful, you and your employer resolve the matter by agreeing on certain terms (including a settlement payment), and there is no trial. Most cases do settle, either at a mediation or through other informal negotiations, but every case is different. If settlement efforts are not successful, you will move forward with trial.
After the discovery stage is complete, the parties will prepare to present the evidence gathered at trial. You must be present in court for each day of the trial, which may take several days or even weeks in some cases. Your lawyer will prepare you to testify at trial and explain the trial process to you well in advance of the first day of trial.
Lawsuits are expensive, even if your lawyer takes your case on a contingent fee basis (meaning he or she takes a percentage of your winnings and only gets paid if you do). This is because many aspects of the process are costly, such as depositions and expert witness testimony (both of which can cost thousands of dollars per day).
Economists or other expert witnesses are often necessary to support your claim for lost wages and other damages. Often times, the plaintiff is responsible for paying these costs as they’re incurred in an employment discrimination case.
As with any type of discrimination claim, your employer is unlikely to simply put their hands up and admit that it has occurred. That means you bear the burden of proving your case with evidence. In most cases, there won't be a "smoking gun." But even without one, your chances of a successful outcome are high if you have concrete evidence—emails, letters, performance reviews—tending to show that you experienced adverse action because of your age.
And don't forget about retaliation claims either, which are often more straightforward to prove than discrimination. For example, if your employer gave you less desirable job duties after you complained of discrimination, that is a textbook case of retaliation.
Finally, an experienced employment attorney will understand how to present your case in the most persuasive way possible.
As you can see, filing a lawsuit is a complex process that usually requires the assistance of an experienced attorney. Before you take any of the steps summarized above, you should to talk to an employment lawyer. A lawyer can help you decide on the best course of action, whether to accept or reject a settlement offer, and assess the risks and likelihood of success at trial.
]]>In general, though, you may be awarded lost pay, liquidated damages (described below), attorney’s fees, and possibly emotional distress damages and punitive damages (depending on your state).
Age discrimination is prohibited by federal law and the laws of many states. However, the damages available to an employee may be different under federal and state law. To find out what laws protect you from age discrimination, talk to an experienced employment lawyer in your area.
The federal Age Discrimination in Employment Act (ADEA) bars employers with 20 or more employees from discriminating against employees who are 40 years of age or older. Under the ADEA, a covered employer cannot discriminate against an older worker in hiring, firing, lay-offs, promotions, pay, discipline, training, job assignments, benefits, or other terms and conditions of employment. Even employer policies that don’t appear discriminatory at face value may violate the ADEA if they have a more negative impact on older workers than younger workers.
Under the ADEA, employers also cannot discriminate among older workers. For example, an employer that promotes a 42-year-old employee over an equally qualified 58 year-old employee because of their ages has violated the ADEA.
Many states have their own laws prohibiting age discrimination in employment. Some of these state laws are broader than the ADEA in their protections of older workers. State law may cover smaller employers or provide additional types of damages to employees who win age discrimination lawsuits. For example, an employee who wins an age discrimination case under the ADEA cannot recover punitive damages (intended to punish the employer) or emotional distress damages, as discussed further below. However, state laws may allow employees to recover these types of damages.
There are several categories of damages available to employees who successfully sue their employers for age discrimination, although the categories differ under federal and state law, as well as from state to state.
Under the ADEA and state age discrimination laws, employees who win age discrimination cases may recover wages they lost as a result of the discriminatory act. If you prove that your employer selected you for lay you off because of your age, you can recover the pay that you have lost up until the time of trial (called “back pay”).
You may also be able to recover the pay that you will continue to lose from the time of trial into the future (called “front pay”).
To do so, you must be able to show that the lay-off will have a negative effect on your career and earning capacity (for example, because of the timing or difficulty in securing a similar position). Your lawyer might hire an expert to assess the impact of the lay-off on your career and testify on your behalf at trial.
In addition to the lost pay, you can recover the financial value of the fringe benefits you lost as a result of the discrimination. For example, you can recover lost health care benefits, retirement benefits, or any other benefits you would have received if not for the discriminatory act. Both the ADEA and the laws of many states allow awards of such damages.
Employees who have suffered age discrimination often experience emotional distress (also called “pain and suffering” damages). Under the ADEA, you cannot win an award of emotional distress damages.
However, you may be able to win these damages under a state age discrimination law that allows such awards. To prove you have suffered emotional distress, your lawyer may need to have a mental health expert evaluate you and testify at trial about your injuries.
Unlike lost pay, emotional distress damages do not easily translate into a dollar amount. It is entirely up to the jury to decide how much to award you. But, your lawyer should be able to give you some idea of what employees in similar cases recovered.
As the name suggests, punitive damages are intended to punish your employer. The ADEA does not allow employees to collect an award of punitive damages.
However, the ADEA does allow an employee to recover “liquidated damages” where the employee proves that the employer’s age discrimination was willful (that is, knowing and intentional). Liquidated damages under the ADEA can be up to the amount of lost back pay.
Some states allow employees who bring successful age discrimination cases to win punitive damages. Punitive damages are only available in particularly egregious cases, and even then, only if you’re able to meet a higher standard of proof than is required to prove the underlying discrimination or retaliation itself.
In short, punitive damages are difficult to win. And, like emotional distress damages, the amount of punitive damages is entirely up to the jury. Ask your lawyer about the prospect of winning punitive damages in your case.
Under the ADEA and some states’ laws, you may also be awarded attorneys’ fees if you win your case. This means that attorneys’ fees won’t be deducted from any damages award you receive.
Even the strongest of lawsuits can be costly, time-consuming, and difficult. You should consult with a lawyer, who can carefully assess the merits of your case. A lawyer can explain the pros and cons of filing an age discrimination lawsuit, evaluate your potential damages, and lay out other options for resolving your claim, such as engaging in settlement negotiations with your employer.
]]>The federal Age Discrimination in Employment Act, or ADEA (29 U.S.C. § § 621-634), is the primary federal law that prohibits employers from discriminating against employees and applicants who are at least 40 years old based on age.
The ADEA protects workers from age discrimination in every phase of the employment relationship, including job advertisements, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments, and termination.
The U.S. Supreme Court has held that the ADEA prohibits practices and policies that are seemingly neutral, but have a disproportionately negative impact on older workers (disparate impact), as well as those that explicitly treat older workers less favorably than younger workers (disparate treatment). (See Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005).)
Not only does the ADEA prohibit employers from discriminating against older workers in favor of those who are younger than 40, it also prohibits employers from discriminating among older workers. For example, an employer cannot hire a 43-year-old rather than a 53-year-old simply based on age.
The ADEA applies to all private employers with 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.
The federal Older Workers Benefit Protection Act, or OWBPA (29 U.S.C. § 623 and following), amended the ADEA to make it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Like the rest of the ADEA, the OWBPA only protects people who are at least 40 years old.
The OWBPA prohibits age discrimination in the provision of fringe benefits, such as life insurance, health insurance, disability benefits, pensions, and retirement benefits. Typically, this means that employers must provide equal benefits to older and younger workers.
For some types of benefits, however, employers can meet this nondiscrimination requirement by spending the same amount on the benefit provided to each group, even if older workers receive lesser benefits.
In some circumstances, employers are also allowed to provide lesser benefits to older workers if those workers receive additional benefits -- from the government or the employer -- to make up the difference.
Many state laws also prohibit discrimination on the basis of age. Although some of these laws essentially mirror federal law and protect only employees who are at least 40 years old, other state laws are broader and protect workers of all ages.
State laws tend to apply to employers with fewer than 20 employees, so your employer might have to comply with your state law even if it isn't covered by federal law.
Workplace age discrimination can take many forms, some obvious and some more subtle. Here are a few examples of age discrimination that most would instantly recognize as such:
And here are a few more subtle examples of age-based discrimination that might occur at work:
If you've been the victim of age discrimination at work, don't hesitate to contact an employment law attorney to discuss your legal options. You can find one near you using Nolo's Lawyer Directory.
]]>The OWBPA prohibits age discrimination in the provision of fringe benefits, such as life insurance, health insurance, disability benefits, pensions, and retirement benefits. However, employers are allowed to reduce benefits to older workers when justified by significant cost considerations.
In most situations, employers must provide equal benefits to older and younger workers. For some types of benefits, however, employers can meet this nondiscrimination requirement by spending the same amount on the benefit provided to each group, even if older workers receive lesser benefits as a result.
Employers are also allowed, in some circumstances, to provide lesser benefits to older workers if the older workers receive additional benefits (from the employer or the government) that make up the difference.
The rules are different for different types of benefits, and they can get quite complicated. You can find detailed information on the rules in the Compliance Manual compiled by the federal Equal Employment Opportunity Commission, at http://eeoc.gov/policy/docs/benefits.html.
The OWBPA also requires employers to include certain language -- and follow certain safeguards -- when asking older employees to give up their right to sue the company. By signing a waiver—often called a release or covenant not to sue—an employee agrees not to take any legal action, such as an age discrimination lawsuit, against the employer. In return for signing the waiver, the employer gives the employee an incentive to leave voluntarily, such as a severance pay package that exceeds the company’s standard policy.
This type of transaction was very popular in the early 1990s among large corporations that wanted to reduce their payroll costs. Because older workers who have been with a company for a long time typically cost more in salary and benefits than younger workers, most staff-cutting programs were directed at older workers.
But cutting only older workers constitutes illegal age discrimination, so companies commonly induced the older workers to sign away their rights to sue their former employers. In colloquial parlance, these deals are often referred to as Golden Handshakes—as in Thank-You-Very-Much-for-Your-Hard-Years-of-Service-and-If-You-Retire-Right-Now-This-Grand-Bunch-of-Benefits-Will-Be-Yours. This cruel squeeze play is now somewhat limited.
Under the OWBPA, you must be given at least 21 days to decide whether or not to sign such a waiver that has been presented to you individually. If the waiver is presented to a group of employees, each of you must be given at least 45 days to decide whether or not to sign. In either case, you have seven days after agreeing to such a waiver to revoke your decision.
There are a number of other key restrictions the Older Workers Benefit Protection Act places on agreements not to sue.
Employers are allowed no room to hedge on any one of these requirements; a waiver that does not comply with all the absolute requirements is the same as no waiver at all.
The U.S. Supreme Court reaffirmed this in a case decision, holding that an employee who signed a deficient waiver could not only sue for age discrimination, but also did not have to return the severance pay she received from her former employer for signing the invalid waiver. (Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).)
The OWBPA gives additional legal protections if your employer offers you the opportunity to participate in a staff reduction program. The Act indirectly puts you in a position to negotiate the terms of your departure.
The fact that your employer has offered an incentive tells you that the company wants you gone and is worried that you might file a lawsuit for wrongful discharge. This means there is nothing preventing you from making a counteroffer.
For example, after taking a week or two to think, you might go back to your employer and agree to leave voluntarily if your severance pay is doubled. There is power in numbers, so this type of negotiating is even more likely to be effective if done on behalf of a group of employees who are considering the same offer.
As in all employment transactions, it is wise to advise your employer of your decision in writing and to keep a copy of that letter—along with copies of all documents given to you by your employer as part of the staff reduction program. If you refuse to accept such an offer and are later dismissed, you may be able to allege illegal age discrimination as a basis for challenging your dismissal.
If you believe that an employer has violated your rights under the Older Workers Benefit Protection Act, you can file a complaint with the EEOC just as you would against any other workplace discrimination. (See our articles on workplace discrimination and harassment for more information.) Note, however, that money damages are limited to back pay—and an additional sum equal to your back pay award for willful violations—plus attorneys’ fees and court costs.
If the EEOC does not resolve your complaint to your satisfaction, you may decide to pursue your complaint through a lawsuit. This additional avenue is not available for state workers, however.
If your employer has violated the OWBPA or otherwise committed age discrimination against you, contact an experienced employment law attorney to discuss your legal options.