I’ve worked for a company that sells educational products for about twenty years. Recently, our company was purchased by another corporation, and the new management team is making some changes. My boss told me I’m on the list of employees to be laid off. I asked why I was selected, and he said the new owners want “fresh blood.” I’m 56 years old, and the new managers are all in their early forties. I think they are booting me because of my age. I’m going to talk to a lawyer, but I’d like to know what I could win if I succeed in an age discrimination lawsuit.
Assuming you win your case, the actual amount of compensation (called “damages”) you could receive depends on what you have lost as a result of the discrimination. 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.