Age Discrimination in Employment: A Most Invisible Prejudice…

By Chris Avcollie

Age Discrimination in Employment: A Most Invisible Prejudice… In some ways, Western culture teaches us to honor and respect our elders. The fifth Commandment in the Judeo-Christian tradition is: Honor your father and your mother, Exodus 20:1-21. But in many contexts, Americans are predisposed to hold negative views of older persons. In the workplace in particular, many people erroneously associate advanced age with incompetence, unreliability, and a lack of productivity. While few hold a generalized dislike for older people, many hold false subjective beliefs about the negative effects of aging on workers.   Indeed, 6 out of 10 older workers have recently seen or experienced age discrimination in the workplace, and 90 percent of those who have believed that it is a common fact of working life in this country.

Although federal law has prohibited age discrimination in the workplace for more than 50 years, the problem persists. Further, the problem is not going away any time soon. The Bureau of Labor Statistics (BLS) has projected that the oldest segment of the workforce will be by far the fastest-growing segment over the next thirty years. While research shows that age does not predict ability or performance, employment decisions continue to be influenced by ageism. The subtle and pervasive manner in which business decisions can be influenced by these subjective prejudices about aging makes age discrimination a nearly invisible influence in our organizations. This article examines the legal protections against this most invisible prejudice.

Overview of Legal Protections Against Age Discrimination in the Workplace.

The most widely utilized legislative protection for older workers is the Age Discrimination in Employment Act of 1967 (ADEA). Congress enacted this law to prohibit age discrimination and to promote the employment of older workers. Along with the Equal Pay Act of 1963 and the Civil Rights Act of 1964, these laws laid the foundations of equality that we now expect in the American workplace.

Age discrimination in the workplace involves treating an applicant or employee less favorably because of his or her age. This type of discrimination is called disparate treatment. When it enacted the ADEA, Congress recognized that age discrimination was caused primarily by inaccurate assumptions that age negatively impacts work performance. To prevent such arbitrary discrimination, the ADEA requires employers to consider individual ability rather than false assumptions about age in making employment decisions.

Congress had initially considered including age discrimination in Title VII’s prohibitions against racial, ethnic, and gender discrimination. After commissioning a detailed report on age discrimination (the Wirtz Report), it concluded that age discrimination derived mostly from unfounded assumptions about the decline in the ability of older workers. This was in contrast to workplace discrimination based on race, gender, national origin, and religion, which derived from feelings of dislike or opinions of inferiority about people entirely unrelated to their ability to do their jobs. Although Title VII would remain a close parallel to the ADEA, these findings led Congress to enact the ADEA as a separate statutory protection.

The ADEA applies to a wide range of employers, including private employers with 20 or more employees as well as state and local governments, employment agencies, labor organizations, and the federal government. The Equal Employment Opportunity Commission (EEOC) is an administrative agency that enforces the ADEA and other federal discrimination statutes. An administrative charge must be filed with the EEOC within 180 days of a violation. The EEOC investigates and determines whether age discrimination occurred in a given case.

The ADEA prohibits age discrimination against people who are age 40 or older. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one under the ADEA, even if both workers are age 40 or older.  General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004). Discrimination can occur under the ADEA when both the victim and the person who inflicted the discrimination are over 40, provided there is a significant age difference between the two.

While disparate treatment based on age is prohibited under the ADEA, an employer may discriminate based on factors that are merely correlated with age such as seniority or pension eligibility. There is no disparate treatment under the ADEA when the employer’s adverse decision is motivated by some factor other than the employee’s age.

In addition to discrimination based on disparate treatment, the ADEA makes it unlawful to harass a person because of his or her age. Harassment can include, for example, offensive or derogatory remarks about a person’s age that are frequent or severe enough to create a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The ADEA also prohibits policies that appear age-neutral but have a disproportionately negative impact on older workers. Such policies are unlawful unless they are based on, reasonable factors other than age (RFOA). Further, the ADEA also makes it unlawful for an employer to retaliate against an individual for filing a charge or for opposing employment practices that discriminate based on age or for testifying at, initiating, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

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. The ADEA does not explicitly prohibit an employer from asking an applicant’s age or date of birth. However, such inquiries may discourage older workers from applying for the position or may otherwise indicate possible intent to discriminate based on age.

In 1990 Congress amended the ADEA when it enacted the Older Workers Benefit Protection Act (OWBPA). The 1990 amendments 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 might create a disincentive to hire older workers. The OWBPA also sets specific requirements that limit the circumstances under which an employer can require its workers to waive their rights under the ADEA.

In addition to the protections of the ADEA under federal law, most states and municipalities have enacted similar anti-discrimination laws that prohibit age discrimination. Today, nearly every state except South Dakota has a law specifically prohibiting age discrimination in the workplace. Forty-three state laws include age within their omnibus anti-discrimination laws, meaning the same standards and damages apply in age cases as they do in other state law discrimination cases. Thirty-two state laws provide for either compensatory and/or punitive damages, with 21 states providing for both. In most cases the state law protections afford greater coverage, more reasonable standards of proof, and potential for more extensive damages than the ADEA.

For example in Connecticut, the Connecticut Fair Employment Practices Act (CFEPA) prohibits employers from discriminating against employees or applicants based on age unless a BFOQ exception applies. Conn. Gen. Stat. Sec. 46a-60(a)(1). Unlike the ADEA, the CFEPA does not specify an age limit for covered employees. The statute applies to all employers of three or more employees. Similarly, in New York, the New York Human Rights Law (NYHRL) prohibits age discrimination in employment against individuals 18 years of age or older. The law covers employers with four or more employees (NY Exec. Law Sec. 296  et seq.). These state statutes generally provide greater protections than the ADEA and cover many more small businesses and organizations than the federal statute.

While our collective understanding of aging, work, and discrimination has changed, ageist assumptions still drive many employment decisions. The ADEA and its state law counterparts are an effective tool to combat this financially, economically, and emotionally devastating practice. But how do these laws work?

• Elements of an Age Discrimination Case.

The ADEA provides that it shall be unlawful for an employer to discharge any individual or otherwise discriminate against any individual concerning his compensation, terms, conditions, or privileges of employment, because of such individual’s age. 29 U.S.C. § 623(a)(1). While the goals of the ADEA are clear, how does the Act achieve that goal? What exactly does one have to prove to bring a successful claim of age discrimination under the ADEA?

While the various types of age discrimination claims (discussed in more detail below) have slightly different standards, the most common types of age claims are disparate treatment claims based on circumstantial evidence. These are claims involving older workers being treated unfavorably as compared to their younger colleagues where the evidence of the mistreatment must be inferred from the circumstances as opposed to direct evidence of discrimination. These claims are governed by a burden-shifting framework set out in the landmark U.S. Supreme Court case  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the framework set up in McConnell Douglas, a plaintiff bringing an age discrimination case must produce certain evidence at various stages of the case to succeed.

First, the plaintiff (employee) must bear the initial burden of raising a small amount of evidence sufficient to establish a basic claim of discrimination. This basic evidence is called the prima facie case. If the plaintiff succeeds in raising this basic evidence, the burden shifts to the defendant (employer) who must raise a basic legal justification for the adverse action it took against the employee. This basic legal justification is called a legitimate non-discriminatory reason for its action. If the defendant can give this basic lawful reason for what it did, the plaintiff then has to show that the employer’s reason was false and that the real reason for the action was discrimination based on age. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-106 (2d Cir.2010).

To make a prima fascia case, the plaintiff must show evidence supporting four facts:

• she is a member of a protected class (i.e. over 40 years old);
• she is qualified for her position and was performing adequately;
• she suffered an adverse employment action (termination, lost promotion, etc.); and
• the circumstances of the case give rise to an inference of discrimination. Id. At 107.

The plaintiff’s burden at this stage of the case is not heavy. The fourth prong of the prima facie case can be satisfied by a variety of facts, including some evidence of the employer’s negative comments about others in the plaintiff’s protected group, more favorable treatment of others not in the protected group, or even the fact that the plaintiff was replaced by someone outside of the protected group. Next, the defendant must satisfy its burden to produce evidence of a legitimate non-discriminatory reason for its action. The defendant’s burden is also not very heavy at this stage. While the defendant must produce some evidence to support its actions, the evidence does not need to be persuasive. The defendant may meet its burden by showing some evidence that the plaintiff was a poor performer or violated some company policies, for example, or that she was not qualified for the position in question.

Finally, suppose the defendant can produce a legitimate reason for its actions. In that case, the burden then shifts back to the plaintiff to prove that the defendant’s stated reason for the adverse action was a pretext or false reason and that the true reason was age discrimination.   At this stage, the plaintiff’s burden becomes heavier as she must prove by a preponderance of the evidence (i.e. more likely than not) that age was the direct (or but-for) cause of the adverse action.  Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). If the plaintiff is successful in showing that age was the cause of the employment decision at issue, she will have proven her case under the ADEA.

Evidence of Age Discrimination.

When a plaintiff raises a claim of age discrimination under the ADEA, how much evidence must she produce to prevail? What kind of evidence is effective and what kind is not? The first standard a plaintiff employee must confront in an ADEA case is the but for causation standard. In  Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177“78 (2009), the United States Supreme Court held that to establish a disparate-treatment claim under the plain language of the ADEA, a plaintiff must prove that age was the but-for or sole cause of the employer’s adverse decision.  Before this decision, an employee under the ADEA could prevail even where illegal age discrimination was one of several motives for the adverse employment action.  Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Thus, under current federal case law, an employee must prove by a preponderance of the evidence that age discrimination was the sole and direct motivation for the employer’s adverse actions against her. Gross makes clear that a plaintiff bringing a disparate-treatment claim under the ADEA must prove… that age was the ˜but-for’ cause of the challenged adverse employment action and not just a contributing or motivating factor. Wagner v. Bd. of Trustees for Connecticut State Univ., No. HHDCV085023775S, 2012 WL 669544, at 10 (Conn. Super. Ct. Jan. 30, 2012).  Gross did not, however, reject the McDonnell Douglas burden-shifting framework for ADEA cases altogether. (Internal quotations omitted.) Gorzynski, at 106. This but-for-causation standard is a much more difficult standard to meet than that which applied for much of the history of the ADEA.

Given this difficult federal but-for standard, plaintiffs in age discrimination cases are wise to consider bringing age claims under state rather than federal anti-discrimination statutes which often provide a more reasonable standard of proof. For example, in Connecticut, under the CFEPA, state courts have held that the more onerous but-for standard does not apply to state age discrimination claims and that the discriminatory motive need only be one of the motivating factors of the adverse action. This court has also rejected an invitation to apply the but for’ test to state age discrimination claims. Gonska v. Highland View Manor, Inc., No. CV126030032S, 2014 WL 3893100, at 8 (Conn. Super. Ct. June 26, 2014). Thus in Connecticut and several other states, employees have a better chance of prevailing under state rather than federal law. A plaintiff in Connecticut for example only has to prove that age was one of several motivating factors in the employer’s adverse decision.

Once the applicable standard of causation is determined, the employee plaintiff must determine whether she can produce direct or indirect evidence to support her claims. Direct evidence is usually either a document or the testimony of a first-hand witness that attests explicitly to the discriminatory intent of the employer. An example of direct evidence of discrimination might be a memorandum instructing a manager to terminate all employees over the age of 55.  This type of evidence is of course very rare. Direct evidence of discriminatory treatment is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion motivated the adverse action. United States v. Hylton, 944 F. Supp. 2d 176, 187 (D. Conn. 2013) (internal quotations omitted), aff’d, 590 F. App’x 13 (2d Cir. 2014).

Indirect evidence, often referred to as circumstantial evidence is evidence that tends to prove a key fact by proving other facts.   Indirect evidence of discrimination does not provide direct proof but uses other facts to demonstrate that according to logic, common sense, and experience, discrimination must have been the motive for the employer’s action. An example of indirect evidence would be testimony that a manager terminated all of the employees over age 55. While there could be other reasons why the manager took this action, the fact that she retained all of the younger workers creates an inference that age was the motivation for the terminations. The law makes no distinction between the weight or importance to be given to direct or indirect evidence. The jury must weigh all of the evidence and the decision should be based on the preponderance of the evidence. The preponderance of the evidence is the total of facts that the jury believes are more likely true than not true.

Because direct evidence of discrimination a ‘smoking gun’, attesting to a discriminatory intent, is typically unavailable, plaintiffs and courts ordinarily proceed by way of the three-part burden-shifting analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Holtz v. Rockefeller & Co., 258 F.3d 62, 76 (2d Cir. 2001). As outlined above, the McDonnell Douglas analysis is an orderly method of presenting and examining evidence in the large majority of discrimination cases where direct evidence is unavailable. But when a plaintiff presents direct evidence of discrimination, the McDonnell Douglas burden-shifting analysis becomes unnecessary. See  Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Once an employee provides direct evidence of age discrimination, the burden of proof shifts to the defendant employer to show that they would have made the same decision regardless of discriminatory intent.  Fair Hous. Justice Ctr., Inc. v. Cuomo, 2018 WL 4565152, at 11 (S.D.N.Y. Sep. 24, 2018) (internal quotations omitted). If the defendants can meet their burden, then, to overcome that showing and to meet her ultimate burden, the plaintiff must show that the discrimination was nevertheless a but-for cause of the adverse employment action.  Beckhorn v. New York State Dep’t of Corr. & Cmty. Supervision, No. 18-CV-1452, 2019 WL 234774, at 5 (W.D.N.Y. Jan. 16, 2019).

It is important to understand that even where a plaintiff employee cannot produce direct smoking gun evidence of age discrimination, she can meet her burden under a McDonnell Douglas analysis by showing that the employer’s legitimate non-discriminatory reasons are false.  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). If the plaintiff offered evidence establishing a prima facie case and evidence showing that the employer’s articulated reason is pretextual, the jury may find the plaintiff. The plaintiff is not required to introduce additional evidence to prove pretext.  Evidence of pretext, however, is not enough on its own. Not only must the jury disbelieve the employer’s reason for its actions it must also believe the employee’s reasons (age discrimination). Where the prima facie case combined with evidence of pretext provides evidence of intentional discrimination, the jury is free to conclude that the legitimate reasons for the employment action have been eliminated and it is more likely than not that the employer (who we generally assume acts with some reason) based his decision on an impermissible age consideration.

Are ageist comments made by employer’s decision-makers strong evidence of age discrimination? It depends on the context and the comments themselves. Some comments are considered stray remarks and are not given much evidentiary weight. Other remarks are probative of discrimination and may reveal unlawful intent. Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff. Silver v. N. Shore Univ. Hosp., 490 F.Supp.2d 354, 362 (S.D.N.Y.2007). A given ageist remark will be considered probative where it shows a strong link to the adverse employment decision at issue and where it shows a discriminatory state of mind. While a stray remark about age, without more evidence, is not enough to carry an age discrimination claim, where other indicia of discrimination are presented the remarks are no longer stray and a jury may conclude that the comments reflect discriminatory motives. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.1998); See, Beckhorn v. New York State Dep’t of Corr. & Cmty. Supervision, No. 18-CV-1452, 2019 WL 234774, at 5 (W.D.N.Y. Jan. 16, 2019).

Types of Age Discrimination Cases.

While age discrimination in the workplace can take many forms, the cases that are actionable under the ADEA fall into one of several general categories.

Disparate Treatment

As discussed above, most age discrimination cases are based on the theory of disparate treatment. This type of discrimination is perhaps the most easily understood. It occurs when an employer treats one or more older workers less favorably than others because of their age. Proof of discriminatory motive is critical, although it can be proven by both direct or circumstantial evidence. In a disparate treatment case, liability depends on whether the employee’s age motivated the employer’s decision. This includes cases where the employer relied upon a facially discriminatory policy or where the employer was motivated by age discrimination on an individual basis.

Whatever the employer’s decision-making process, a disparate treatment claim cannot succeed unless the employee’s protected trait played a role in that process and had a determinative influence on the outcome. As discussed above, but-for causation must be proven. Gorzynski,  Supra, at 107. A plaintiff employee may be subject to disparate treatment under the ADEA through violations by either explicit or constructive alterations in the terms or conditions of employment.

Disparate Impact

Claims based on disparate impact involve employment policies and practices that are facially neutral as to age but which, in practice, negatively affect the terms, conditions, or privileges of employment for older workers more than younger workers. The key distinguishing feature between disparate impact and disparate treatment claims is that the former does not require proof of discriminatory intent on the part of the employer. Thus, even where the employment policy creating the disparate impact was enacted without any discriminatory motive, the employer may be held liable for its unequal effect on older employees. Smith v. City of Jackson, Miss., 544 U.S. 228, 240, 125 S. Ct. 1536, 1544, 161 L. Ed. 2d 410 (2005).

Although the ADEA authorizes disparate impact claims; an employer’s policy or practice having a disparate impact does not violate the ADEA if the employer’s decision to adopt the practice was based on a reasonable factor other than age or RFOA. The scope of disparate impact claims under the ADEA is therefore more narrow than under Title VII. See,  Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008) (alteration omitted) (quoting  Smith, 544 U.S. at 241, 125 S.Ct. 1536). The RFOA exemption precludes liability under the ADEA even when the motivating factor [for the action] is correlated with age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The RFOA exemption from liability for disparate-impact claims under the ADEA is an affirmative defense, which means the employer bears the burden of proving that it applies.  Mabry v. Neighborhood Defender Serv., 769 F.Supp.2d 381, 395 (S.D.N.Y. 2011) (citing Meacham, 554 U.S. at 93“94, 128 S.Ct. 2395). Cerni v. J.P. Morgan Sec. LLC, 208 F. Supp. 3d 533, 542“43 (S.D.N.Y. 2016).

Hostile Environment/Harassment

Courts in several federal circuits have held that the ADEA’s prohibitions on discrimination in the compensation, terms, conditions, or privileges of employment, because of such individual’s age (29 U.S.C. § § 623(a)(1), 631(a)) also prohibit requiring people to work in a discriminatorily hostile or abusive environment based on age.  Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467, 488 (S.D.N.Y. 2019), quoting  Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Harris). This type of hostile environment claim requires proof of additional elements besides membership in a protected class and adverse action: To properly plead a hostile work environment claim, a plaintiff must allege that: 1) the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and 2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer. Walsh, at 488.

The hostile conduct based on age must be quite severe to be actionable. The employee’s workplace must be, permeated with discriminatory intimidation, ridicule, and insult. That is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 41“42 (2d Cir. 2019). The hostile environment based on age must be both objectively and subjectively severe or pervasive. In other words, it must be so severe that an average person would have found it offensive and the employee must have found it offensive herself. If the discriminatory conduct is severe or pervasive it is actionable.  Green v. Town of E. Haven, No. 18-0143, 2020 WL 1146687 (2d Cir. Mar. 10, 2020).

Hostile environment claims differ from disparate treatment claims based on discrete acts (i.e. termination, demotion, unwarranted discipline) in that they involve repeated conduct over some time.  In a hostile environment, unlawful discrimination does not take place on a particular day but rather occurs over days, weeks, months, or even years. Thus, in hostile environment cases, the jury or court may consider evidence of discrimination spanning years. Even behavior that is outside the statute of limitations might be considered part of a hostile environment theory of age discrimination under certain circumstances.

Just as in a disparate treatment claim, a mixed-motive theory of causation is impermissible in an ADEA hostile environment case. The plaintiff must prove age was the but-for causation for the harassment. Further, the employee must demonstrate that the hostile environment is imputed to the employer.  Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004). Generally, the plaintiff must show that the employer knew or should have known about the harassment but failed to take remedial action to stop it.

Unlawful Waiver of Rights Under the ADEA

As discussed above, the ADEA was expanded in 1990 when Congress enacted the OWBPA. An employer violates these 1990 amendments by improperly requiring an employee over the age of 40 to waive or surrender his or her rights under the ADEA.  Employers often seek waivers from employees upon separation of employment or in exchange for severance benefits. Waivers are common in settling discrimination claims or in connection with exit incentives or other employment termination programs. To be valid, the waiver must be knowing and voluntary on the part of the employee and must meet minimum standards including:

• the waiver must be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by the employee;
• the waiver specifically refers to rights or claims arising under the ADEA;
• the individual does not waive rights or claims that may arise after the date the waiver is executed;
• the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
• the individual is advised in writing to consult with an attorney before executing the agreement;
• the worker has adequate time to consider the agreement as follows:

(a) the individual is given at least 21 days within which to consider the agreement; or

(b) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given at least 45 days within which to consider the agreement;

(7) the agreement provides that for at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(8) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate as to:

(a) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(b) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

McCormack v. IBM, 145 F. Supp. 3d 258, 266“67 (S.D.N.Y. 2015).

The OWBPA regulations are not so much used as an affirmative basis for claims by plaintiff employees but rather as a counter-defense where defendant employers claim a defense of waiver in response to an ADEA claim. The OWBPA restrictions on waivers are strict and unqualified and employees may not validly waive an ADEA claim unless the employer complies with the statute.

How Do I Recognize Age Discrimination If I See It?

While age discrimination remains very common in the workplace, it often goes unrecognized by both witnesses and those who are its targets. What type of behavior or circumstances should one be watchful for to spot age discrimination in the workplace? How does one recognize this invisible form of discrimination? The following common workplace situations may indicate age discrimination:

• Termination

Undeserved Termination: If you are terminated without a good reason, for a reason that does not make sense, under pretenses such as a phony performance review, or for a reason that you do not believe.

Replaced by a Younger Worker: If you are terminated and your job is filled by a younger worker. If the company tells you that your position was eliminated but the job is being done by a younger person.

Suspicious  Reduction In Force: You were laid off along with several other workers or in a large-scale reduction-in-force and most of the people selected for lay-offs are older workers.

• Unequal  Discipline/Privileges

Discriminatory  Policies: Company policies that hurt employees based on their age.

Unfair  Discipline: Older workers are disciplined or written up for certain offenses while younger workers are not.

Favoritism: Older workers are excluded from meetings or workplace gatherings, or are given worse assignments, resources, and equipment.

Loss of Duties: Job duties are taken away from an older worker and given to a younger employee without good cause.

Unfair Evaluation: Older workers are held to different standards of performance than younger workers. Performance reviews suddenly decline after a certain age.

• Promotions/Training

Failure to Promote: If you do not receive or are not considered for promotions due to age or are passed over for promotion in favor of a younger employee who is equally or less qualified than you.

Failure to Train: You are denied a training opportunity or a chance to develop new skills on the job while younger employees are afforded such growth opportunities. Often technology skills training is denied to older workers who are considered less apt because of age.

• Hiring/Advertising

Refusal to Hire: If you are not hired for a position for which you are qualified, younger workers who are less or equally qualified are hired for the job. Hiring employers may say they are looking for a candidate with more energy, or that they prefer someone with more growth potential. Often the terms, too experienced or overqualified are used as well.

Job Advertisements: You are not hired for a job that contains an age preference that you did not meet. The ADEA makes this illegal except where age is a necessary factor for the position. Sometimes employers use code words like enthusiastic or energetic to attract younger workers rather than clear age preferences.

• Harassment/Retaliation

Age-Based Harassment: If your colleagues or superiors make frequent jokes or comments about your age, play age-based pranks, or otherwise treat you differently and single you out because of age. Ageist comments may not be directed squarely at you but may be pervasive in the workplace. If you are exposed to these comments they may be discriminatory and harassing.

Retaliatory Actions: After reporting some other form of age discrimination, the employer begins supervising you unnecessarily, writing you up for petty offenses not enforced against other workers, or changing your work duties or conditions.

• Retirement

What Can I Recover in an Age Discrimination Case?

The financial and emotional harm caused by age discrimination on older workers and their families is significant. When an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and she is more likely to take a significant pay cut if she becomes re-employed. The loss of a job has serious long-term financial consequences for older workers. Many must begin living off of retirement savings too soon and must postpone retirement or liquidate assets to get by.  Further, the emotional trauma of age discrimination can affect long-term mental and physical health.

The damages available under the ADEA are different than those available under Title VII. An employee in an ADEA case may recover back pay, attorney’s fees, reinstatement or front pay, and liquidated damages in cases where the employer committed willful violations of the act. No punitive damages are permitted under the ADEA and compensation for the emotional distress caused by the illegal discrimination is not available.  Meyers v. I.B.M. Corp., 335 F.Supp.2d 405, 411 (S.D.N.Y. 2004).

Back pay is the primary form of damages in age discrimination claims. Back pay covers the loss of wages and benefits the employee suffered from the time of the discriminatory action such as termination or demotion to the date the case is resolved either in or out of court.  Equal Employment Opportunity Comm’n v. Kallir, Philips, Ross Inc., 420 F. Supp. 919, 923“25 (S.D.N.Y. 1976), aff’d sub nom. E.E.O.C. v. Kallir, Philips, Ross, Inc., 559 F.2d 1203 (2d Cir. 1977). Back pay calculations include the value of health insurance benefits, bonuses, and commission payments that the employee would have been entitled to had the discrimination not occurred.

Reinstatement or front pay is the form of damages used to compensate the employee for the lost wages and benefits she would have earned going forward from the date the case is resolved until she finds a job with equal or greater compensation.  Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467, 482“83 (S.D.N.Y. 2019). The most complete remedy is for the Court to order that the employee be reinstated to the position they lost at full pay and benefits. In some cases, this remedy is impractical because the relationship between the employer and employee has deteriorated beyond repair. In those cases, front pay is used to make up the difference between what the employee could have earned in wages and benefits at the defendant’s company had the discrimination not occurred and what she earned after losing the job.  Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727“29 (2d Cir. 1984).

For both back pay and front pay calculations, the employee is required to make every effort to obtain comparable employment. The plaintiff must mitigate or reduce her damages. This means the employee cannot just wait for compensation through the legal system. The plaintiff must seek and obtain the best job she can to reduce the amount of damages she suffers from illegal discrimination. Courts look at the jobs that are available but declined by the plaintiff as well as the positions obtained.  The amount earned by the employee is deducted from the total damages. It is the employer’s burden to prove that the employee did not mitigate her damages. While wages and benefits earned are deducted from the total damage award, benefits such as unemployment insurance, social security payments, and pension benefits are not deducted.

While plaintiffs in age discrimination cases cannot recover compensatory (emotional distress) or punitive damages, they can recover liquidated damages in certain cases. Liquidated damages are similar to punitive damages in that they are awarded to punish willful violations of the ADEA. A claim for willful violation may be proven by showing that the employer either knew it was violating federal law when it took the adverse employment action or that it had a reckless disregard for the law when it acted. Liquidated damages are awarded as a doubling or multiple sum equal to the plaintiff’s award for back pay.  Koyen v. Consol. Edison Co. of New York, 560 F. Supp. 1161, 1164“68 (S.D.N.Y. 1983).

A plaintiff who successfully prosecutes an age discrimination case is entitled to be compensated for her attorney’s fees and costs of litigation under the ADEA. The amount of attorney’s fees is calculated by the Court based on the time spent and hourly rates of the employee’s attorney. Even where the plaintiff signed a contingency fee agreement with her counsel, attorney’s fees are awarded based on an hourly rate calculated by the Court as reasonable based on the time spent, the experience and expertise of the lawyers, and the prevailing standards for similar work in the local legal community. While it is rare for a plaintiff to recover all of the legal fees incurred, this category of damages is often very significant.

What Do I Do About Age Discrimination in My Workplace?

• Keep Detailed Records and Notes: When it comes to proving any kind of discrimination, the devil is in the details. Keep detailed notes of meetings, interactions, conversations, or any event that may bear on your changing situation at work. If you report an incident to HR or a supervisor, follow up with an email memorializing the report print it out, and keep a copy for your records. If ageist remarks are made at a company training session, write down the date, time, names, and titles of those present, and a precise account of what was said and how people reacted. If a group of younger workers is selected for a training program, note the date of the announcement, who was selected, who made the decision, and what the criteria were for selection. If an HR partner discusses retirement options with you when you did not ask about them, write down all of the details of the conversation and send a thank you email confirming the meeting took place and that retirement was discussed. Document information regarding your performance and achievements at work as poor performance is often a pretextual reason for firing older workers.
• Report Suspected Incidents of Discrimination to HR: Ignoring the problem will not help. Report instances of ageism or discrimination to HR promptly. Do so in writing whenever possible and cite the company’s anti-discrimination policies if applicable. Create a paper trail. Send emails memorializing the report and keep copies. Follow up and be sure you avail yourself of all of the rights granted under company policies to receive a report of the investigation if any or any other documentation of your complaint. If you are not satisfied with the results speak to someone else in your reporting chain at the company and document that interaction as well.
• Invest in Career Growth: A common stereotype of older workers is that they are less sharp or ambitious than their younger colleagues. Defy that stereotype and document the activity. Keep on top of workplace and industry trends and technology. Invest in your own training and professional development. Keep up with company changes and industry standards. Keep records of all of this activity to demonstrate your professional currency should you become the target of ageist employment actions. Defy the stereotypes.
• Seek Legal Counsel: Seek the advice of an experienced employment attorney as soon as you suspect that you may be a target of age discrimination. An attorney can help you more before the situation comes to a head and can be available to guide you if it does.
• File Claims Promptly: If you are the target of age discrimination be sure that you properly file your claims of discrimination with the nearest office of the EEOC as well as the appropriate state anti-discrimination agency. If you have an attorney she will take care of that but you should be aware that there are strict time limits for filing age discrimination claims. If you fail to meet any state or federal filing deadline you could lose your right to bring certain claims.

As with all types of illegal employment discrimination, age discrimination can be devastating and overwhelming when you are the target. There is no substitute for skilled legal counsel when you are the subject of unlawful employment practices.

If you need more information, please contact our employment attorneys in Connecticut and New York, Carey & Associates, P.C. at (203) 255-4150.