Age discrimination is when an employer treats an older employee or job applicant less favorably because of their age. Sometimes it’s as blatant as firing an older employee and replacing them with a younger one because of age. An employer might instead harass an older employee, make ageist comments, pressure them about retiring, cut their pay, take away job duties, or put them on trumped up performance improvement plans.
As with any discrimination claim, the facts of an individual situation matter a great deal. That makes it critical for employees to talk to a Cleveland age discrimination lawyer to protect themselves.
What qualifies as age discrimination?
Enacted in 1967, the federal Age Discrimination in Employment Act (the “ADEA”) prohibits employers with 20 or more employees from discriminating against employees who are 40 or older based on their age. Ohio has a similar law, found in Chapter 4112 of the Ohio Revised Code. Ohio’s law applies to employers with four or more employees.
So what qualifies as age discrimination? Imagine a 55-year-old with years of experience applies for a job or a promotion, only to be passed over for someone in their 30s with less experience and fewer credentials because the employer wants to project a certain image to customers. Or consider a 60-year-old successful sales employee with a long track record of success. Then a new boss comes in. Wanting “new blood” and “fresh ideas,” the boss starts to criticize the employee for trivial things and manufactures reasons to write the employee up. Within a few months, the new boss fires the employee for pretextual reasons. Are these familar scenarios age discrimination? They sure look like it.
Any number of negative job actions by an employer—if based on age—might qualify as discrimination under the ADEA or Ohio law, including:
- Hiring or firing decisions based on age;
- Demotions and promotions;
- Pay and benefits disparities;
- Work assignments and training;
- Harassment and hostile work environment;
- Forced retirement;
- Taking away job duties;
- Job postings asking for applicants of a certain age;
- Employer policies restricting duties to employees of a certain age.
It’s important to remember that age discrimination laws apply only to employees who are 40 or older. There is no legal cause of action based on being too young. Although there’s no age cap for protection from age discrimination in general, there is a narrow mandatory retirement exception for employees over 65 who worked as a “a bona fide executive or [in a] higher policymaking position,” provided that the employee met certain financial thresholds. 29 U.S.C. § 631(c)(1). This exception, though, is intended to apply “only to a very few top level employees who exercise substantial executive authority over a significant number of employees and a large volume of business.” 29 C.F.R. § 1625.12(d)(2).
How to prove age discrimination
To prove age discrimination, an employee or job applicant must show that age was the cause of their adverse employment action. In other words, they have to show that their age was the “but for” cause—as in, “but for” your age, you would have gotten that job, promotion, or retained your employment. Proving that can be a challenge, but the evidence comes in all forms. It might be ageist comments or stereotypes. It might be more favorable treatment for younger employees. Sometimes, evidence of age discrimination can be found in a pattern of an employer pushing out older employees and replacing them with younger ones. No matter what the evidence is, it’s important for employees to have good documentation to show what happened and when.
Even if a decision might look discriminatory, employers can defend against discrimination claims by arguing they would have taken the same action regardless of age. That might be poor performance, financial difficulties, or something else related to the job. For instance, an employer might have an internal seniority system in place that led to the allegedly discriminatory decision. Another important aspect to consider is that Ohio is an at-will employment state, meaning that generally, employers may terminate an employee for any reason or no reason at all, as long as it isn’t an otherwise illegal reason.
What should I do if my employer discriminated against me due to age?
Before doing anything else, it’s best to talk to an age discrimination lawyer near you. If you have a claim, the attorney can help you navigate the various steps you’ll need to take before bringing a lawsuit.
One necessary step under both the ADEA and Ohio law is first filing a charge of discrimination with either the Ohio Civil Rights Commission (“OCRC”) or the Equal Employment Opportunity Commission (“EEOC”). Those are the administrative agencies tasked with investigation employment discrimination claims. Employees cannot file a lawsuit in court without first filing with either the OCRC or the EEOC.
If you have questions about whether your situation qualifies as age discrimination, or if you think you’ve been discriminated against, contact the Cleveland age discrimination attorneys at Bolek Besser Glesius LLC today for a free consultation.
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