Q. I was 62 years old when I got laid off six months ago. I have been on a few interviews since then, but I have received no job offers. I believe my age is limiting my employment prospects. What should I do?
A. With baby boomers getting older and competition for positions fierce, many employed and unemployed workers suspect their age is a factor behind their inability to get a promotion or a new job. In fact, age discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) climbed to 23,264 in the 2010 fiscal year, up 45 percent from a decade earlier, according to agency statistics.
Under the Age Discrimination in Employment Act of 1967 (ADEA), it is unlawful for employers to refuse to hire or to fire someone at least 40 years old because of his or her age. Further, employers cannot discriminate against older workers in regard to the conditions, terms or privileges of their employment.
How do you identify age discrimination? An employer could directly come right out and say to you that “you’re too old” or “we’re looking for someone younger.” Inquiries into your age might raise red flags. Just be aware the EEOC has said employers’ inquiries about your date of birth on forms are permitted. What matters is how employers use that information.
Other times you might have to rely on circumstantial evidence, such as an employer’s decision to hire an unqualified, younger worker instead of you. If there were layoffs at your old job and a majority of the pink slips went to older workers, there could have been an unlawful disparate impact. In either case, an aggrieved worker must prove by a “preponderance of evidence” that an employer made a personnel action because of an individual’s age.
New York workers have 300 days after an incident of age discrimination occurred to file a complaint alleging an ADEA violation with the EEOC. An employment law attorney could help the employee prepare the complaint and represent him or her during mediation. If mediation is unsuccessful at yielding results to a plaintiff’s liking and an EEOC investigator dismisses the case, the worker can sue the employer in federal court.
In some instances, employees may want to file a complaint under New York’s age discrimination law. New York’s Human Rights Law (EXEC § 296) provides protections against age discrimination similar to those in the ADEA, only the state law covers people 18 years of age and up whereas the federal law applies exclusively to individuals at least 40 years of age. Complaints under this state statute must be filed with the New York State Division of Human Rights within one year of the occurrence of discrimination.
Workers who believe they were subjected to age discrimination should consult with an employment law attorney.
