Think you’ve been laid off from a job but didn’t get one in the Covid-19 recession because of age discrimination?
It could easily take years and a lot of luck to prove it.
It can take at least a year and a half to two years under the Age Discrimination in Employment Act of 1967 (ADEA) between the time a victim files a charge with the federal Equal Opportunity Commission and the case goes to trial.
Then an appeal can take a year or two more, said AFL-CIO Associate General Counsel Yona Rozen.
“These are hard cases to win,” said the labor attorney.
One of the reasons is an employer can win by successfully asserting the worker was selected as one of those let go because he or she had a high salary.
Lawyers often shy away from taking the cases because they aren’t very lucrative. Victims who win before the EEOC or the federal courts are only allowed to recoup lost wages and not permitted to collect for compensatory and punitive damages such as pain and suffering unlike with discrimination on race, gender, religion, and national origin.
People trying to prove age discrimination in court are also behind the eight-ball because judges think it is less serious, less harmful and less frequent than other forms of discrimination, said Cathy Ventrell-Monsees, an EEOC attorney and co-author of a book on age discrimination litigation.
“There is a real misunderstanding,” the prominent age-discrimination specialist asserted.
She suggested that the fact judges are appointed for life and don’t have to face firing and looking for a job in their later years could be major factors.
Ventrell-Monsees is predicting two big waves of age discrimination lawsuits are coming: one from the Covid-19 layoffs that started in March and another when older workers try to get back into the workforce and find they are less likely to be hired.
She pointed out this is happening when prior to the pandemic, the trend was for workers to remain in the workforce longer than previous generations.
Establishing you didn’t get a job because of age discrimination is harder than proving you were fired because it is hard to find who got the job and argue that the reason was because of their age, the expert said.
However, she said the EEOC is making it a priority to uncover if there was a pattern of unfairly hiring and recruiting younger applicants.
She noted private attorneys have the ability to call witnesses and do other research that individuals who think they have been victimized lack.
But there are a few things someone who thinks they didn’t get a job because of age can do to try to prove discrimination without paying a lawyer.
Look at the company’s LinkedIn site and if you can find someone just out of college got the job you applied for that asked for at least five years of experience, that could be a sign of discrimination.
Also, think about questions you were asked in a job interview that could point to discrimination such as when do you plan to retire and when were you born.
Comments from the interviewer that you’re overqualified and jokes about age can also be clues.
While making an employment discrimination claim before the EEOC and the federal courts based on disability rather than age might seem the way to go because the money could be greater, Workplace Fairness Executive Director Edgar Ndjatou said this is the wrong tact to take.
Federal rules for age discrimination are only a floor for compensation and workers who go through state tribunals can be eligible for pain and suffering payouts. Single judgements in the states have run into the millions of dollars.
The other big difference in state laws on age discrimination compared to the federal dictate is many have a lower threshold on the size of the organization that can be sued to those with at least 20 employees while states frequently lower the limit to 10 or impose no minimum.
Here is a list of state anti-age discrimination laws from Workplace Fairness. It was last updated in 2017. Experts say the laws don’t change frequently.
While federal law lets people as young as 40 sue for age discrimination, suits for those between 40 and 50 are few and far between.
The typical winner is in the 50s out of a high-paid job that had benefits.
“People say age discrimination will go away. It never does. We still have a very long way to go,” said AARP Foundation Litigation Senior Attorney Laurie McCann who has represented workers alleging the wrong for 30 years.
Going forward, AFL-CIO’s Rozen said there is going to be an interesting intersection between disability and age discrimination—diabetes and high blood pressure in the elderly increases their risks to Covid-19 compared to other workers.
She said employers aren’t required to make adjustments in workplaces for age as they are for disabilities.
“If you are seeking a Covid-19 related accommodation then you want to tell your employer about disabilities you may have hidden, because that is what will cause the employer to have an interactive dialogue about reasonable accommodation under the Americans With Disabilities Act of 1990,” Rozen said.
