Lawyer Monthly Magazine - April 2019 Edition

Can you briefly underline what accounts towards age discrimination? Age discrimination occurs when an employer decides to suspend, demote, terminate, or fail to hire an employee because of a belief that he or she is too old (or in some cases, too young) to perform his or her job duties effectively. Age discrimination can also take the form of a hostile work environment which can include “code words,” comments, or jokes that stereotype older workers, such as the employee is “past his prime”, “set in her ways”, “can’t teach an old dog new tricks”, or “lacking energy and enthusiasm.” What laws protect employees in these instances? The main federal law protecting employees over the age of 40 is the Age Discrimination in Employment Act (ADEA). The ADEA provides an administrative remedy through the Equal Employment Opportunity Commission (EEOC) as well as the right to pursue a civil action in federal court. Civil remedies include economic damages based on lost pay and benefits. Successful claimants/litigants may also receive attorney’s fees. AGEDISCRIMINATION State laws in the Northeast are generally more favorable to employees than the ADEA. For example, in the State of New York, employees are protected by the New York State Human Rights Law (NYSHRL). Under the NYSHRL, employees under the age of forty are protected as well, so it is possible to assert a “reverse” age discrimination case. Further, successful litigants may also receive damages for emotional distress, as well as attorney’s fees. These remedies are not available under the ADEA. The Commonwealth of Pennsylvania’s state law against discrimination, the Pennsylvania Human Relations Act (PHRA), provides for emotional distress, attorney’s fees and civil penalties in some cases. In the State of New Jersey, employees of any age may sue for age discrimination under the Law Against Discrimination (LAD). The LAD also provides successful litigants with the full panoply of tort damages, including lost pay, emotional distress damages and punitive damages, along with attorneys’ fees which may be enhanced by the court. Because these state laws provide additional remedies to age discrimination plaintiffs, many employees opt to pursue their claims under these laws rather than the ADEA. How can you prove age discrimination in the workplace? Age discrimination can be proven through direct or indirect evidence. Direct evidence includes written or oral comments which stereotype workers because of their age. Examples of ageist comments include “you are too old (or young) for this job”, “you can’t teach an old dog new tricks”, or “when are you going to retire.” Because it is rare for an employer to make such blatantly ageist comments, employees more commonly use indirect or circumstantial evidence. Indirect evidence takes many forms. Sometimes employers Continuing on our workplace discrimination series, we speak with Steven Siegler at Phillips & Associates. He speaks to Lawyer Monthly about age discrimination and your rights if you have ever been told: “You are too old for this job.” will reveal an implicit bias against older employees by using “code words” for ageism. For example, an employer may state, on a performance review of an older employee, that the employee is “resistant to change” or “lacking vision” or otherwise criticize the employee’s energy level, enthusiasm or work ethic. Courts have recognized that these “code words” can mask age discrimination. In other cases, employers may repeatedly ask an employee when he or she will retire, even after the employee states that they have no intention to retire. Other cases can rely on statistics showing that the employer regularly fires a disproportionate number of older employees while retaining younger ones. “Aren’t You Too Old for that?” - Age Discrimination in the Workplace www. lawyer-monthly .com 80 Expert Insight APR 2019