Age Discrimination or ADEA Claims
Serving You and The State of Florida
It is illegal for an employer to discriminate against an employee in the hiring process or actively employed based on race, religion, sexual orientation, disability, sex, or age. It is also forbidden to discriminate against marital status, AIDS/HIV, or sickle cell trait in the state of Florida. As an employee or job candidate, you have the right to a safe and harassment-free workplace and are entitled to a discrimination-free environment.
The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people aged 40 or older. Employees maintain the legal right to file a lawsuit against an employer that is discriminating in the workplace. Age discrimination can be challenging to prove, and therefore you must understand what constitutes this kind of discrimination, the statute of limitations, and how to pursue remedies effectively.
What Are My Rights As An Employee?
Florida is what is known as an at-will state when it comes to employment. This means that an employer can usually terminate an employee for any reason, so long as it does not violate their rights. This means that an employer cannot terminate someone for any of the following:
Discrimination: An employer, as stated above, cannot terminate you because of your race, age, sex, pregnancy, national origin, marital status, religion, or disability. If you can find employees who work in the same company who were treated differently and they are in a different category, that will help your case. If you can also identify people in your company who are in the same class as you and were treated similarly, that would be beneficial.
- Reporting discrimination: you cannot be terminated if you reported violations regarding discrimination to the appropriate authorities.
- Refusing to participate in discriminatory practices: you could be considered a whistleblower if your company has ten or more employees. You cannot be terminated for refusing to take part in these practices.
- Initiating a Workers Compensation Claim: if you make a claim against an employer because of an injury that took place at work, you cannot be terminated for exercising this right.
- Taking a leave of absence for medical illness: as long as you have been at the current company for more than 12 months and your employer has more than 50 employees, you could have a potential claim under what is known as the Family and Medical Leave Act.
- Overtime issues: if you object to not being paid for overtime that you are rightly owed, and you are let go as a result, you may have a claim against the employer.
- Testifying in court against your employer: you cannot be terminated for testifying against your employer in court if you did so under a subpoena.
- Being pregnant: the basis of you being let go by your employer cannot be because you are pregnant or because you recently had children.
- Being over the age of 40: if you were laid off because you are over the age of 40, that would be age discrimination, and if proven, you may have a claim against the employer.
What Is Age Discrimination?
Age discrimination occurs when a job applicant or current employee is treated unfavorably due to their age. This may manifest in the form of fewer opportunities, verbal teasing or harassment, and even termination. According to the ADEA, it is unlawful to hire, fire, promote, lay off, alter benefits, dictate job assignments, or change compensation based on someone’s age.
In addition to workplace rights, the ADEA protects individuals from discrimination in the form of advertisements and job notices, pre-employment inquiries, benefits, and apprenticeship programs. In general, it is unlawful to indicate age preferences or specifications in job postings. Additionally, without an exemption from the ADEA or EEOC, apprenticeship programs cannot set age limitations.
What Does Age Discrimination Look Like?
Discrimination can present itself in many ways, including negative social interactions, salary discrepancies, disciplinary action, demotions, and performance evaluations. Some signs that you may be working in an environment that is prone to age discrimination are:
- A pattern of hiring young team members
- Being turned down for promotion in preference of someone younger
- Age-related comments or remarks being made in the workplace
- Layoffs that are affecting primarily an older demographic
- Performance improvement plans despite reliable job performance
- Early retirement packages or mandatory retirement ages
- Challenging assignments are regularly given to younger team members
- Isolation from meetings or group projects
- Unjustified disciplinary action
As simplistic as these signs may first appear, age discrimination is not straightforward. For example, even if you are over the age of 40, being turned down for a promotion does not itself warrant age discrimination. However, you may have a legitimate case if the individual offered the promotion was younger and less qualified for the position. Likewise, some professions may have legally upstanding mandatory retirement ages due to physical ability and safety concerns.
In the hiring process, age discrimination can sometimes appear in relation to previous job experience. Despite being an excellent candidate, an employer may use terms such as “overqualified” when denying someone an opportunity. This can indicate age discrimination as there may be an assumption that a more senior, more experienced candidate will become bored or dissatisfied with the position.
Is An Employer Allowed To Ask My Age On A Job Application?
Although the ADEA does not prohibit job application questions that refer to a candidate’s age or date of birth, they strongly recommend that employers stray from requesting this information until after the employee is hired. Asking for a date of birth or age indicates to the job candidate that this information will be considered with their application. While this may not directly be discrimination according to the ADEA, it alerts incoming employees to potential issues later on. If the information is required for lawful purposes, it should be requested after the hiring process is complete.
What Are The Requirements Of An Age Discrimination Case?
To sue for age discrimination, you must be over the age of 40 and working for a company of at least 20 employees or more. Additionally, you should be able to prove that the discrimination was age-related. This means that you will need to provide evidence that the adverse action would not have occurred if not for the employer’s bias against your age.
If you are filing due to employment termination or demotion, you will need to prove that you were well-qualified and met all employer expectations. Evidence should include any notices of termination and proof that your position remained open or was filled by an individual who was similarly qualified but younger.
What Should I Do If I Witness Discrimination In The Workplace?
It is critical to report signs of discrimination, whether against you or someone else, to prevent the unlawful treatment of employees. As an employee, you are protected from retaliation, including termination for reporting workplace discrimination. If you are wrongfully terminated for reporting harassment or discrimination, you have the right to sue. Consult with an experienced attorney to further understand your rights and the process for opening a case.
What Evidence Do I Need For An Age Discrimination Case?
Being turned down for a promotion or position does not itself warrant age discrimination. However, if you can provide evidence of a pattern of hiring or promoting younger employees without merit, you have a better chance at a successful case. Often, proving age discrimination can be a painstaking and challenging task, which is why it can be critical to consult with an attorney.
How Do I File An Age Discrimination Case?
In the state of Florida, anti-discrimination laws are enforced by the Commission on Human Relations. To file an age discrimination complaint, submit a written report to the Equal Employment Opportunity Commission (EEOC). In Florida, a charge must be filed within 300 days of the incident. After your charge is filed, you will receive a copy of your charge from the EEOC. Within about ten days, your employer will also receive a notice and copy of the EEOC charge. After these events have occurred, the EEOC may request the following:
- Request a mediation program occur with you and your employer
- Ask your employer to submit a written response to your claim. The charge is then handed over to an investigator.
- EEOC will then dismiss the charge if they do not have jurisdiction or if the charge was not filed within the 300 days.
What Happens If An Agreement Is Not Made In An Age Discrimination Case In Florida?
If the EEOC decides to investigate your charge further, they may begin gathering documents and interviewing witnesses. When the investigation is finished, you and your employer will be notified of the results. If the EEOC decides the discrimination did not occur, you will receive a “Notice of Right to Sue.” You can now file a lawsuit in the courts.
If a settlement cannot be reached, you can then determine whether or not you will sue. Having an experienced attorney on your side during this process will be incredibly beneficial for your case.
How Long Does an Age Discrimination Claim Take to Resolve?
After you make a charge, it can take about six months to resolve your case. In some cases, you very well might have a decision before then. If you can identify people in your workplace who are experiencing the same type of discrimination, that will be highly beneficial to your case. Any first-hand accounts or witnesses are helpful in making a solid argument.
What Are The Remedies For Age Discrimination?
Employees have a right to a harassment-free, non-discriminatory workplace. If you have experienced age discrimination, you may be entitled to back pay, reinstatement, promotion, damages for willful violations, attorney’s fees and costs, and compelled employment. To ensure the maximum remedies, consult with an experienced attorney who can advocate for you. Additionally, a legal consultant can help protect you from potential retaliation.
I Am An Employer; How Can I Prevent Age Discrimination?
There are several preemptive actions you can take to prevent unintentional age discrimination within your business:
Establish a clear anti-discrimination policy
Review existing policies and procedures that address age discrimination and identify any areas for improvement. Consider revising areas that may closely align with age discrepancies, including sick leave policies, retirement, or recruitment practices. Additionally, if you do not already have one, put into place a zero-tolerance policy for discrimination or harassment. The policy can be referred to in the case of an incident in which an employee feels personally or professionally discriminated against in the workplace.
Enforce anti-discrimination policies and practices
Establishing a policy is the first step, but knowing how to enforce it is critical. Have a plan in place for approaching incidents should they arise and clarify any disciplinary actions that may be taken against an employee or leader should they harass or discriminate against another team member. Transparency with your employees will make your stance on workplace harassment clear while empowering everyone on the team to hold each other accountable to company values.
Maintain a diverse and inclusive workforce
Prioritizing diversity and inclusion is one of the best ways to ensure a discriminatory-free workplace. By actively developing a diverse team of employees, you create space to accept all backgrounds and experience levels. You can still pursue talented team members while encouraging a welcoming and safe environment for all.
Consider existing rhetoric and implicit bias
Refrain from posting job descriptions that include language such as “young,” “energetic,” or “fresh-minded.” This implies ageism and would reflect poorly in a case of age discrimination. Instead, use words such as “dedicated,” “passionate,” or “detail-oriented.” This rhetoric is not demographic-specific and is more inclusive of experience levels.
Implicit bias involves the unconscious integration of stereotypes into a discussion about qualifications. Avoid encouraging implicit bias by removing unnecessary questions from your interview planning and utilizing various recruitment tools to engage with diverse applicants. If possible, encourage your hiring team to participate in implicit bias and anti-discrimination training.
Establishing A Discrimination-Free Workplace
Employers can avoid age discrimination suits by intentionally approaching diversity and inclusion and establishing policies and procedures that protect their team’s interest. Employees should take time to review these policies and hold each other accountable for adhering to non-discrimination practices.
If you are a business in the process of implementing new anti-discrimination policies and want to ensure compliance with federal and state law, consider consulting with a business lawyer. If you feel as though there is discrimination in your workplace, consult with an experienced employment lawyer who can further inform you of your rights and advocate on your behalf.
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