Approximately three years after the enactment of Title VII of the Civil Rights Act of 1964, older adults became a protected class, along with race, color, religion, sex, and national origin, under the Age Discrimination in Employment Act of 1967. Unfortunately, federal law did not stop age discrimination in its tracks. Typically, when an employer wants to discriminate against a protected class, they find more subtle ways to skirt the law. That’s why it is critical, now more than ever, to understand how to identify if you were fired illegally based on your age.
The Senate and House of Representatives enacted the Age Discrimination in Employment Act of 1967 (ADEA) to designate older adults as a protected class under federal law. This act defines older adults as being 40 years or older. It states that an employer may not discriminate against an employee based on age in the hiring process, promotion process, compensation requirements, discharge, or the terms, conditions, and privileges of employment.
In the context of this article, that means that under federal law, an employer cannot fire you based on your age. In addition, it is also important to note that the Age Discrimination Act of 1978 prohibits mandatory retirement before the age of 70 and all mandatory retirements for federal workers. Today, it is illegal for any employer to adopt a mandatory retirement age.
However, your employer can still fire you if you’re deemed “unfit to work.” This means that if you cannot perform the essential roles of your job with reasonable accommodations. You cannot lose your job simply because of a medical condition or temporary illness, especially if you can still do your job. This is important for older adults as long-term illnesses become more common.
Despite these rules and regulations, one glaring exception still worries older adults, their loved ones, and representatives alike. Bone fide occupation qualification (BFOQ) is an employment law under the ADEA. Employers can legally restrict hiring or terminate an employee based on age, sex, religion, or national origin if they cannot perform essential tasks.
For example, if someone cannot lift the weight required for a construction job due to a disability, this is a BFOQ. You must consider all these laws, regulations, and stipulations if you feel you’ve been a victim of termination due to age discrimination.
Identifying workplace discrimination based on age is sometimes more complicated than in the past. For example, many employees who want to discriminate based on age will assign undesirable assignments to an older employee to coax them to quit. In the same vein, they can also assign tasks that are bound to fail to have a reason to give an employee a poor work review, laying the foundation for “reasonable termination” if the employee fights back.
In addition, demanding requirements that do not match the job is another common tactic employers use. For example, suppose an employer suddenly adds to an employee’s contract that they have extensive knowledge of pop culture, social media, and current celebrities for a cashier job at a supermarket. In that case, this is likely a way to get them fired. While it often won’t be as overt as that example, paying attention to it is essential. If you’re noticing poor reviews that are not warranted, investigate where they’re coming from.
Occasionally, age discrimination in the workplace can be more overt. It can look likes jokes and teasing but make no mistake; this can still qualify as age discrimination. Please take note: jokes, quips, or comments that make you uncomfortable and do not stop after you report them are a problem. This can also look like employers commenting that they need “fresh blood” or asking when you’re going to retire.
Occasionally, age discrimination in the workplace will take the form of massive layoffs of older workers, not receiving earned promotions or raises, not receiving meeting invites, or not receiving training on new protocols or technology. Any of these instances require further investigation if you feel safe doing so.
If your employer wrongly fires you, there are a few steps you need to take before going forth with any legal action. The first and most important step is gathering any physical evidence you can. This can be in the form of an employee contract, digital or physical correspondence between you and your employer, your employee handbook, or any other paperwork that states the terms and conditions of your role or employment.
Ensure you obtain printed copies and store all data on a drive to protect the evidence. In addition, do not leave your compiled evidence anywhere else but in your own dwelling to avoid tampering. In the same vein, do not tell your employer you’re filing a wrongful termination claim until you’ve met with a lawyer, compiled your evidence, and filed a claim with the Equal Employment Opportunity Commission (EEOC).
Secondly, contact any witnesses or other potential victims if you can, as they may have evidence of past illegal activity that you don’t possess. Some may be willing to testify in court if necessary.
Once you’ve compiled your evidence, you have two options. First, you can contact a lawyer to see if your case holds water, then they will advise you to contact the EEOC. Or you can go directly to the EEOC and file a claim yourself. It is important to note that you must file a claim with the EEOC to comply with the law. Remember, you only have 180 calendar days from the incident to file a claim with the EEOC.
The EEOC will notify your employer that legal action is being taken against them. At this point, your employer may try to settle with you out of court. Whether you choose to do so or not, having an experienced age discrimination attorney on your side is critical if you want to get the compensation you deserve. If you choose not to settle out of court, the case will move to civil court.
However, the EEOC must investigate before the case can move to civil court. This investigation process can last up to 10 months after you’ve filed your claim. In the meantime, your lawyer will continue to advise and help you build your case.
It is critical to hire an attorney because, after the investigation, the EEOC can send you a Dismissal and Notice of Rights if they do not determine that there is reasonable cause to believe that discrimination has occurred. This means you have 90 days to file a lawsuit in federal court. Therefore, having a lawyer review your case beforehand can save you a lot of potentially wasted time.
Now that you know how to identify if you were illegally fired based on age and what to do about it, you have the power and the knowledge to take your power back and uphold your rights as an employee.