Matthew D. Besser Cathleen M. Bolek Amy S. Glesius

Bolek Besser Glesius LLC

5885 Landerbrook Dr.
Cleveland, OH 44124
United States (US)
Phone: (216) 464-3004
Fax: (866) 542-0743

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Age Discrimination

Helping Workers Over 40 Get Justice for Unfair Treatment

Older workers have the right to be judged on their performance and abilities—not on their age.

Both Ohio and federal law prohibit employment discrimination on the basis of age against employees who are over 40. If you are over 40 and have been mistreated at work because of your age, seek out an experienced Cleveland age discrimination attorney to help protect your rights.

How to Recognize Age Discrimination

Recognizing that older workers are often at a disadvantage in keeping a job, and particularly in finding new employment after losing a job, in 1967, Congress passed the Age Discrimination in Employment Act. In doing so, Congress sought to “promote employment of older persons based on their ability rather than age . . . [and] to prohibit arbitrary age discrimination in employment.” 29 U.S.C. § 621(b). Ohio has similar laws banning age discrimination in employment, which are found in Chapter 4112 of the Ohio Revised Code.

The most obvious examples of unlawful age discrimination are firing or refusing to hire employees because they are over 40. But Ohio and federal law also prohibit discriminating against employees because of their age with respect to any other aspect of employment. That means employers may not use age as a basis for harassment, demotion, denial of promotion, pay cuts, unfavorable job assignments, or any other term, condition, or privilege of employment. Retaliation against employees who report suspected age discrimination is also prohibited by Ohio and federal law.

While there are many potential signs of age discrimination in the workplace, there are a few particularly common ones. Some typical indicators of age-based animus include:

  • Ageist comments. Comments or jokes by supervisors or managers about an employee’s age may be obvious evidence of age discrimination, especially when close in time to a negative job action. It would not be uncommon in age discrimination cases to hear that an employee was called “grandpa,” asked about retirement, or told he is “too slow.” Comments about wanting a “fresh” image in the workplace, or other coded statements suggesting a preference for younger workers could also be evidence of an illegal bias.
  • More favorable treatment of younger employees. Giving younger employees better assignments or more training than older employees might be evidence of an age bias at work. Similarly, if younger employees are given lesser discipline or otherwise treated more favorably than older employees under the same circumstances, age discrimination might be occurring. It is important to note that the “younger” employee need not be under 40, as long as he or she is substantially younger than the plaintiff.
  • Older workers being forced out. Evidence that the employer is forcing out older workers or hiring only younger workers can be another sign of age discrimination at the workplace.

Not every employment decision that affects an older worker is considered illegal age discrimination. Employers may make decisions based on age when the employee’s age is a “bona fide occupational qualification” that is necessary for the particular job in question. That exception is very narrow, however, and will apply only under limited circumstances. Employers can also claim a defense in an age discrimination case if they can show the challenged decision was based on reasonable factors other than age or a bona fide seniority system.

Representing Age Discrimination Victims

Age discrimination claims can be some of the most difficult and complex for employees to pursue. There are several procedural requirements that can forever bar employees from effectively vindicating their rights if not precisely followed.

While there are several different types of age discrimination claims, they do not all have the same time limitations for bringing a claim. Some of the claims have very short statutes of limitations. If employees do not move quickly, they can permanently lose the right to pursue those claims.

To pursue a federal claim under the Age Discrimination in Employment Act, an employee cannot simply file the claim in court. Instead, the employee must first file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission. The time limit for doing so is short and strict. However, filing a Charge poses its own risk for the unwary employee. Unless the employee includes very specific legal language when filing the Charge, the employee risks waiving the right to also bring an age discrimination claim under Ohio law, due to a doctrine known as “election of remedies.”

There are also special rules that apply when employees over 40 are offered severance packages in exchange for waiving their rights. Before a waiver of an age discrimination claim will be enforced, the employer must take several steps:

  1. The employer must provide a waiver in clear, written language that can be easily understood by the employee.
  1. The waiver must specifically refer to the Age Discrimination in Employment Act.
  1. The waiver must be given in exchange for something of value given to the employee, for instance, severance pay to which the employee would not otherwise be entitled.
  1. The employee must be advised in writing to consult with an attorney.
  1. The employee must be given at least 21 days to consider whether to sign the waiver agreement, and must be given at least 7 days to change his or her mind after signing. If the employee is being offered severance as part of a group layoff, the employee must instead be given 45 days to consider whether to sign.

Failing to take the right steps when pursuing an age discrimination claim can keep you from ever getting your day in court. In order to safely navigate the procedural hurdles and protect your rights, employees should work with an experienced Cleveland age discrimination attorney.

The Cleveland employment law attorneys at Bolek Besser Glesius LLC have extensive experience helping employees over 40 who have been fired or crowded out of their jobs to make room for younger employees. If you have an age discrimination claim, we will work with you at every stage to help you get justice. We will make sure that your voice is heard and that your rights are protected.

Call us today or request an appointment to meet with us.