Violations

Prohibited age-related actions include hiring, firing, classifying, segregating or assigning jobs on the basis of age. Wage decreases because of age violate the ADEA. Forced retirement may not violate the ADEA if the age limit is a bona fide occupational qualification, such as an airline pilot.

"Reasonable accommodations" are not an issue in age cases. Instead, discrimination because of age is all about comparison to the younger employee. Assuming all things are equal in experience, education, competency, etc., the employer is prohibited from varying in its treatment of older employees. Layoffs and other purely business decisions that affect the older worker do not violate the ADEA.

My sales route has been cut in half and given to a new employee in her 20s because her commission rate is much smaller than mine. Is this age discrimination?

Yes. Your situation is a classic example of an employer favoring the younger employee because your seniority earns you a bigger commission. If your company says it needs to cut costs, and that is the only reason for your route change, the courts may find that the reason is nothing more than an illegal "pretext" or excuse for discriminating against you on the basis of your age.

I have a summer business and want to advertise for employees less than 25 years of age. Can I do it?

No. Advertising for employees on the basis of age violates the ADEA. You may not print or publish any materials indicating an age preference.

Sidebar: Language such as "recent graduate" or "student" is also prohibited.

A 40-year-old employee is always late to work and I want to terminate her. Does the ADEA prohibit me from firing this person?

No. The ADEA specifically allows discharge and discipline of an employee for good cause.

I have been terminated for a decrease in my sales quotas, but other younger workers have not. Did my employer have good cause to terminate me?

No, assuming you are 40 or older. Your employer is relying on a pretext-your sales decrease-as a justification for terminating you. The employer's pretext is obvious since younger employees in the same circumstance have been treated differently.

TIP: It is not absolutely necessary that the other employees are younger to prove an ADEA violation; the basis of discrimination is your age.

How do I prove my employer is discriminating against me on the basis of my age when I have no direct evidence?

Since the so-called "smoking gun" memo directing a termination because a worker is too old is generally non-existent, the courts have formulated an analysis for determining if the ADEA has been violated. You must prove a "prima facie" case of age discrimination by showing:

• you are over age 40
• you were discharged, demoted or suffered an adverse job action
• you were qualified for the job
• similarly situated individuals under 40 were treated more favorably

If you prove those basic elements, you have an age discrimination case that your employer must defend.

How do I pursue an ADEA claim?

If you believe your employer has or is violating the provisions of the ADEA, you must file a complaint with the EEOC or a local human resources agency. The steps are the same as with an ADA claim, including the 180-day deadline after the date of the ADEA violation for filing.

TIP: The ADEA allows claimants to file suit in federal court within 60 days after filing their complaint with an agency, whether or not a right to sue letter has been issued.

Is my ADEA claim affected if I do not try to find another job?

Yes. The ADEA requires you to mitigate or attempt to lessen your damages. Because you are entitled to pay from the time of your termination to the present if you prevail (backpay), the ADEA requires you to at least seek other employment to reduce the award of back pay.