AGE DISCRIMINATION

Pittsburgh age discrimination lawyer Charles

A. Lamberton has represented dozens of

older workers who have experienced age

discrimination in the workplace. He has

spent years studying the psychology of

ageism and age stereotyping and applies

that knowledge to help his age discrimination

clients win their cases. Pittsburgh age

discrimination attorney Charles A.

Lamberton can help spot age discrimination

and restore your lost wages and benefits.

Pittsburghh age discrimination lawyer Charles Lamberton lives in Allegheny County, which has a very high concentration of older workers.  And anywhere there are older workers, there is age discrimination.

Think about it.  Age discrimination is so prevalent in the United States that we’ve become accustomed to it.  If you walk into any Hallmark store, go to the birthday card section, you will see dozens of cards, mostly funny, but not always, about aging. “Turning 50 is something we all must face sooner or later. You sooner, me later.” If you go to Macy’s and head to Cosmetics, you will see hundreds of products designed to minimize and hide the effects of aging.  Now turn on the television. You will see show after show depicting young, beautiful people, leading fun and exciting lives. When older persons are depicted, they are stereotyped on the basis of age; think Martin Crane on Frasier, Dana Carvey’s “Grumpy Old Man” on SNL, or Abraham Simpson on The Simpsons.

Look at the magazines at Barnes & Noble. Who’s on the cover of People or Glamour? Listen to the radio. You might hear Rod Stewart’s “Forever Young,” or Journey’s “Only the Young,” or perhaps Rick Springfield’s “Celebrate Youth.”

Age is one of the first characteristics we notice about other people, and ageism is the most socially condoned form of discrimination in our Country.   Research shows older people are stereotyped as warm but incompetent, and are viewed in about the same way as people view the mentally retarded.

Why might you need Pittsburghh age discrimination lawyer Charles A. Lamberton?  Because stereotypes about older persons in the workplace are even worse.  They include perceptions that older workers are nags, unable to change, forgetful, unproductive, decrepit, cranky, weak, verbose, cognitively slow, sleepy and unhappy. These stereotypes are the cognitive precursors to hostile jokes about older people, patronizing speech to older people and baby talk to older people. They are also the cognitive precursors to termination decisions and other adverse employment actions against older workers in the workplace.  Pittsburghh age discrimination attorney Charles A. Lamberton is proud to help older workers fight age discrimination in the workplace.

1. What is age discrimination?
2. Which federal law(s) cover older workers?
3. Who is covered by age discrimination laws?
4. Which employers are covered by the law?
5. Are all older workers protected under the law?
6. What forms of discrimination or unfair treatment are illegal?
7. What are valid reasons for an employer to fire an older worker?
8. Is age ever a qualification for a certain job?
9. Can I be turned down for a job because I am “overqualified?”
10. Can I be fired or not hired because a younger employee costs the company less?
11. Can I be fired to stop my pension from vesting or because my health insurance is more costly?
12. Can an employer ask my age on a job application?
13. Can my employer make me retire?
14. Can I be asked to sign something waiving my legal rights?
15. Are governmental employees covered?
16. Who enforces the law?
17. What are the remedies available to me?
18. How can I file a complaint / how long do I have to file?
19. Where can I get more information about age discrimination?

1. What is age discrimination?

If you are 40 years of age or older, and you have been harmed by a decision affecting your employment, you may have suffered unlawful age discrimination. The Age Discrimination in Employment Act (ADEA) is a federal law that protects individuals 40 years of age or older from employment discrimination based on age. Here are some examples of potentially unlawful age discrimination:

  1. You didn’t get hired because the employer wanted a younger looking person to do the job.
  2. You received a negative job evaluation because you weren’t “flexible” in taking on new projects.
  3. You were fired because your boss wanted to keep younger workers who are paid less.
  4. You were turned down for a promotion, which went to someone younger hired from outside the company, because the boss says       the company “needs new blood.”
  5. When company layoffs are announced, most of the persons laid off were older, while younger workers with less seniority and less on-the-job experience were kept on.
  6. Before you were fired, your supervisor made age-related remarks about you, such as that you were “over-the-hill,” or “ancient.”

If any of these things have happened to you on the job, you may have suffered age discrimination.

2. Which federal law(s) cover older workers?

The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.

While an older worker is also covered by several other workplace laws, these are the main federal laws which specifically protect older workers against discrimination based on age. Age discrimination may be accompanied by other forms of illegal discrimination as well, such as sexrace, or disability discrimination.

The laws of most states also make it illegal to discriminate on the basis of age. For more information, see our page onstate age discrimination laws.

3. Who is covered by age discrimination laws?

Workers who are 40 years of age or older are protected from employment discrimination based on age by the ADEA, if the employer regularly employs 20 or more employees.

Many states also make it illegal to discriminate on the basis of age; however, the minimum number of employees needed to bring a claim varies. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

If two workers are both protected by the ADEA, an employer still may not use age as the basis for an employment decision. For example, a company can’t hire a 45-year-old over a 62-year-old simply because of age; if the company hired the younger employee due to her age, the 62-year-old employee would still have a claim.

The ADEA’s protections apply to both employees and job applicants. If you are a current employee over 40 and are fired or not promoted due to age, you are protected. If you are not hired due to age, you are also protected.

4. Which employers are covered by the law?

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor unions, as well as to the federal government. The ADEA does not apply to elected officials or independent contractors. A number of court decisions have determined how to count the number of employees, so you may need to consult with an attorney to determine whether you are covered if your company employs approximately 20 employees.

If your workplace has fewer than 20 employees, you may still be protected under the laws of some states, even though your employer is not covered by the federal ADEA. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

While the ADEA states that state employees are covered under its protections, recent U.S. Supreme Court decisions have limited the ability of state employees to sue their employers for money damages (see question 15). If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.

5. Are all older workers protected under the law?

No. The ADEA contains several exceptions:· Executives or others “in high policy-making positions” can be  required to retire at age 65 if they would receive annual

  1. retirement pension benefits worth $44,000 or more.
  2. There are special exceptions for police and fire personnel,  tenured university faculty and certain federal employees having   to do with law enforcement and air traffic control. If these   exceptions may apply to you, check with your personnel office or   an attorney for details.
  3. The ADEA makes an exception when age is an essential part of a  particular job – also known by the legal term “bona fide  occupational qualification” or BFOQ. For example, if a company  hires an actor to play the role of a 10-year old, or a teen’s   clothing store needs models, the ability to appear youthful is a   necessary part of the job, or a BFOQ.

6. What forms of discrimination or unfair treatment are illegal?

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment — including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. As a result, the following practices are also illegal:

  1. An employer cannot retaliate against an individual for opposing  employment practices that discriminate based on age or for filing  an age discrimination charge, testifying, or participating in any   way in an investigation, proceeding, or litigation under the ADEA.
  2. An employer may not include age preferences, limitations, or  specifications in job notices or advertisements. As a narrow  exception to that general rule, a job notice or advertisement may  specify an age limit in the rare circumstances where age is shown  to be a “bona fide occupational qualification” (BFOQ) reasonably  necessary to the essence of the business (see question 5).
  3. Apprenticeship programs, including joint labor-management  apprenticeship programs, generally may not discriminate on the  basis of an individual’s age. Age limitations in apprenticeship  programs are valid only if they fall within certain limited  exceptions; consult with an attorney if this may affect you.
  4. Nothing in the ADEA specifically prevents an employer from  asking an applicant’s age or date of birth. However, because such  inquiries may deter older workers from applying for employment   or may otherwise indicate possible intent to discriminate based   on age, requests for age information will be closely scrutinized to  make sure that the inquiry was made for a lawful purpose, rather  than for a purpose prohibited by the ADEA.

7. What are valid reasons for an employer to fire an older worker?

Under the ADEA, there has to be a valid reason — not related to age — for all employment decisions. Examples of valid reasons would be poor job performance by the employee or an employer’s economic trouble. In the case of layoffs, a company cannot use age as the basis for determining who is laid off and who is kept on. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, there may be a basis for an ADEA complaint or lawsuit, especially if the employer has hired younger workers to take the places of workers over 40.

8. Is age ever a qualification for a certain job?

Yes, in very limited circumstances. The ADEA makes an exception when age is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ. However, an employer who sets age limits on a particular job must be able to prove the limit is required because a worker’s ability to do the job after a certain age is actually diminished.

9. Can I be turned down for a job because I am “overqualified?”

It depends. The ADEA only prohibits discrimination based upon age. Although increased age most often correlates with more skills and experience in the workplace, an employer is not required to hire the most qualified or experienced person for a particular position if the company believes that person’s skills and experience are not the best match for the position. While some believe the explanation that a worker is “overqualified” is in essence a codeword for age discrimination, an employee would need to prove that the employer was motivated by the worker’s age, rather than a valid reason other than age.

However, it would be unlawful for the company to refuse to hire an experienced individual based on the assumption, solely based on the applicant’s age and lacking proof, that because they have more experience and/or skills than the position requires, the older employee might become bored and leave the job after only a short time. This is an example of the kinds of ageist stereotypes that can cause employers to discriminate against older workers.

10. Can I be fired or not hired because a younger employee costs the company less?

It depends. A valid reason other than age a company may use to justify the hiring of a younger worker is that the younger worker has less experience and a lower salary history, and may be willing to work in the same job for a lower salary than the older worker. If the company bases the hiring decision on this reason, it is not illegal.

However, an older worker cannot be terminated on the basis that the company either currently or in the near future will be required to pay retirement benefits or more costly insurance benefits (see the next section).

11. Can I be fired to stop my pension benefits from vesting or because my health insurance is more costly?

Firing workers in order to prevent them from earning their promised pensions is a technique some employers use to save money, but it is not legal. When the Older Workers Benefit Protection Act (OWBPA) was passed in 1990, it became clearly illegal for employers:

  1. to use an employee’s age as the basis for discrimination in benefits, and
  2. to target older workers for their staff cutting programs on the basis that benefits were too costly.

An employer cannot terminate an older worker on the basis that benefits are too costly. The company must follow the “equal benefits or equal cost” rule, by providing either equal benefits to older and younger workers, or paying the same benefit costs for all employees. The law only allows an employer to reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. In other words, if an employer pays only $100 in monthly premiums for each worker, this policy does not violate the ADEA even if it causes the older worker to make a higher employee contribution or to have lesser benefits than a younger worker.

An employer could not, however, refuse to pay for the health benefits of all workers over 55 on the grounds that “it costs too much,” if the employer pays the benefits of younger workers, or terminate all older workers so that the pool of employees for insurance purposes is less costly to insure.

12. Can an employer ask my age on a job application?

Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

13. Can my employer make me retire?

As long as an employee is performing his or her job duties, generally the answer is no. If an employee can no longer perform his or her job duties, however, the employer is allowed to discharge that person.

The ADEA does have special exemptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. Executives or others “in high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more. If these exceptions may apply to you, check with your personnel office or an attorney for details.

However, in an effort to save the company money or to reduce the size of the workforce without resorting to involuntary layoffs, employers will often offer older employees early retirement. Offering voluntary early retirement does not violate the ADEA. In exchange for increased retirement benefits or severance, employers may ask employees to waive their rights under the ADEA. In order to be legally effective, the waiver you are asked to sign must follow certain requirements (see next section).

14. Can I be asked to sign something waiving my legal rights?

If asked by your employer, you may agree to waive your rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, requires that a waiver be knowing and voluntary. The law sets out specific minimum standards that must be met in order for a waiver to be considered valid.

Among other requirements, a valid ADEA waiver:

  1. must be in writing and be understandable. This means that if you  only had a conversation with your boss about what will happen  when you leave the company, without anything being put in   writing, you have not waived your right to pursue an ADEA claim.
  2. must specifically refer to ADEA rights or claims. Some companies  use what is called a “general release,” where you agree to waive  any and all claims against the company without the types of   claims being specified. While this may be valid in other   situations, it will not be legally sufficient to waive your ADEA  claims.
  3. may not waive rights or claims that may arise in the future. This  means you can agree to waive your right to sue for something   that already happened, but you cannot waive your right to sue for something that hasn’t happened yet. For example, you can waive  your right to file a claim over your termination, but if a few years  later, your employer reduces your retirement benefits, you still  may be able to file a claim over that.
  4. must be in exchange for valuable consideration. This is a legal  term that means that you must receive something in exchange   for signing that you would not have received otherwise, like a   larger severance package or additional benefits. If you were   entitled to certain benefits anyway, and did not receive anything   additional in return for signing a waiver, it is not valid under the   ADEA.
  5. must advise you in writing to consult an attorney before signing  the waiver. While you do not have to actually consult with an  attorney, and may choose not to, you must have been advised in  writing to consult an attorney. · must provide you with at least 21 days to consider the agreement  and at least 7 days to revoke the agreement after signing it. If  you are presented with a waiver that you must sign immediately  without the time to consider it properly and/or consult with an  attorney, you cannot lose your rights under the ADEA. If you have  signed something that you were only given a few days (or few  hours) to consider, and you suspect that you are a victim of age  discrimination, you should consult with an attorney to see whether  your waiver is valid or not.

In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive. For example, if the offer is being made to a group or class of employees, your employer must inform you in writing how the class of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made. This allows you to have relevant information, that you might not know otherwise, about how the offer affects older workers compared to other workers in the company. You should consult with an attorney to determine whether the waiver you have signed has complied with the more extensive requirements.

The U.S. Supreme Court has also ruled that you may challenge the validity of the waiver without first giving back the money you received in exchange for the waiver. Prior to this decision, based on the law generally applicable to other kinds of contracts, if you had accepted the money, you were considered to have “ratified” the waiver, or to have consented to the company’s violation of the law in exchange for the money you received. This prevented older workers, who may have already spent all or part of the money before they learned that the waiver was illegal, from being able to challenge illegal waivers under the OWBPA.

15. Are governmental employees covered?

Under the ADEA’s language, which Congress passed in 1967, the law specifically protected state government employees as well as federal, private sector and union employees. This meant that, just like other workers, state employees could sue their employers — the states for which they worked — for age discrimination.

However, the U.S. Supreme Court in January of 2000 ruled that state employees were not allowed to use the ADEA’s provisions which allow employees who successfully sued their employers to recover money for back wages and other monetary losses. In the case of Kimel v. Florida Board of Regents, (No. 98-791, decided January 11, 2000), the Court held that Congress did not have the authority to authorize certain kinds of age discrimination lawsuits against states.

Thus, if you are a state employee, the ADEA no longer protects you from age discrimination. However, you may be protected by the laws of the very state that is discriminating against you. If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.

16. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of job discrimination related to an individual’s age in workplaces of 20 or more employees. Most states have their own agencies that enforce state laws against discrimination (see question 18 below).

17. What are the remedies available to me?

Victims of age discrimination can recover remedies to include:

  1. back pay
  2. hiring
  3. promotion
  4. reinstatement
  5. front pay
  6. liquidated damages (up to twice the amount of back pay) may be  awarded in the event of a “willful” violation, if the employee   proves that employer knowingly violated the ADEA or acted in   “reckless disregard” of its provisions
  7. other actions that will make an individual “whole” (in the condition  she or he would have been but for the discrimination).

Remedies also may include payment of:

  1. attorneys’ fees
  2. expert witness fees and court costs

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law. For more information, see our page on state age discrimination laws.

18. How can I file a complaint / how long do I have to file?

Filing a discrimination complaint in Pennsylvania.

A. What kinds of discrimination are against state law in Pennsylvania?

The Pennsylvania Human Relations Act makes it illegal for an employer to discriminate on the basis of race, color, religion, ancestry, age (40 and above), sex, national origin, non-job related disability, known association with a disabled individual, possession of a diploma based on passing a general education development (GED) test, or willingness or refusal to participate in abortion or sterilization.

B. How do I file a discrimination claim in Pennsylvania?

A discrimination claim can be filed either with the state administrative agency, the Pennsylvania Human Relations Commission (PHRC) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Pennsylvania anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 4 and 14 employees, you should file with the PHRC, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency, unless your claim is based on a discrimination category not covered under federal law, such as possession of a GED diploma or participation/non-participation in abortion or sterilization, which would require you to file with the PHRC.

To file a claim with the PHRC, contact the office serving the county where the discrimination occurred (not necessarily the closest to where you live). More information about filing a claim with the PHRC can be found athttp://www.phrc.state.pa.us.

Harrisburg Regional Office

Riverfront Office Center,
1101-1125 S. Front Street, 5th Floor
Harrisburg, PA 17104-2515
Phone: (717) 787-9784
TTY: (717) 787-7279

Counties Served: Adams, Bedford, Berks, Blair, Bradford, Cambria, Carbon, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lancaster, Lebanon, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northampton, Northumberland, Perry, Pike, Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming and York.

Philadelphia Regional Office
711 State Office Building,
1400 Spring Garden Street,
Philadelphia, PA 19130
Phone: (215) 560-2496
TTY: (215) 560-3599

Counties Served: Bucks, Chester, Delaware, Montgomery and Philadelphia.

Pittsburghh Regional Office
11th Floor State Office Building
300 Liberty Avenue
Pittsburghh, PA 15222
Phone: (412) 565-5395
TTY: (412) 565-5711

Counties Served: Allegheny, Armstrong, Beaver, Butler, Cameron, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Potter, Venango, Warren, Washington and Westmoreland.
To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at http://www.eeoc.gov/facts/howtofil.html.

EEOC — Philadelphia District Office
21 South 5th Street 4th Floor
Philadelphia, PA 19106
Phone: (215) 440-2600
TTY: (215) 440-2610

EEOC — Pittsburghh Area Office
1001 Liberty Avenue Suite 300
Pittsburghh, PA 15222-4187
Phone: (412) 644-3444
TTY: (412) 644-2720

C. What are my time deadlines?

Do not delay in contacting the PHRC or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the PHRC (or cross-file with the EEOC) within 180 days or with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Pennsylvania (including Philadelphia and Pittsburghh) have agencies that process claims under local ordinances (such as sexual orientation and gender identity claims not covered under federal or state law) and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government web site for further information.

D. How can I or my attorney pursue a claim in court in Pennsylvania?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the PHRC or EEOC, and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your claim. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the PHRC.

Because Pennsylvania’s state anti-discrimination statute does not permit the punitive damages (damages intended to punish the employer) allowed under federal law, and does not allow for a trial by jury, many Pennsylvania attorneys choose to file employment discrimination cases in federal court. A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute, such as Title VII or the ADEA. Compensatory damages are not capped or limited under the state anti discrimination statute, however, as they are under federal law.
The EEOC must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.)

A lawsuit based on your state claim must be filed within two years of the PHRC’s dismissal of your complaint, as long as your complaint was either dismissed or still pending within one year of the original PHRC filing date.

These deadlines are called the “statute of limitations.” If you have received one of these agency dismissal letters, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.

Pittsburghh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

CONTACT US

LAMBERTON LAW FIRM, LLC
707 GRANT STREET
1705 GULF TOWER
PITTSBURGH, PA 15219

412-258-2250 | OFFICE DIRECT
412-498-4120 | CELL
412-258-2249 | FAX

CAL@LAMBERTONLAW.COM | EMAIL


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