Pittsburgh age discrimination lawyer Charles Lamberton lives in Allegheny County, with 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 and 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 displayed, they are stereotyped based on 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,” 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 consider the mentally disabled.
Why might you need Pittsburgh 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 cruel jokes about older people, patronizing speech, and baby talks to older people. They are also the cognitive precursors to termination decisions and other adverse employment actions against older workers in the workplace. Pittsburgh age discrimination attorney Charles A. Lamberton is proud to help older workers fight age discrimination in the workplace.
- What is age discrimination?
- What federal law protects older workers?
- Who is protected from age discrimination?
- Which employers are covered by the law?
- Are all older workers protected against age discrimination?
- What kinds of discrimination or unfair treatment are illegal?
- Are there ever valid reasons to fire an older worker?
- Is age ever a job qualification?
- Can I be turned down for a job because I am “overqualified?”
- Can I be fired or not hired because younger employees cost less?
- Can I be fired to stop my pension from vesting or because my health insurance is more costly?
- Can an employer ask my age on a job application?
- Can my employer make me retire?
- Can I be asked to sign something waiving my legal rights?
- Are governmental employees covered?
- Who enforces the law?
- What remedies are available to me for age discrimination?
- How can I file a complaint / how long do I have to file?
- Where can I get more information about age discrimination?
1. What is age discrimination?
If you are over 40 years of age, have been a good performer and have suddenly found yourself out of a job, you may be a victim of age discrimination in employment. The federal Age Discrimination in Employment Act (ADEA) protects employees over the age of 40 age discrimination. Age discrimination can include situations where:
- You were not hired because the employer wanted a young person for the job.
- You were given negative performance evaluation because you weren’t “flexible” in taking on new projects.
- You were fired because your boss wanted to keep or hire younger workers.
- 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.”
- When company layoffs are announced, most people laid off were older, while younger workers with less seniority and less on-the-job experience were kept on.
- Before you were fired, your supervisor made age-related remarks about you, such as being “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 40 years or older from employment discrimination based on age. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to prohibit employers from denying benefits to more senior employees. In Pennsylvania, the Pennsylvania Human Relations Act also prohibits age discrimination.
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 based on age; however, the minimum number of employees needed to bring a claim varies. If the ADEA protects two workers, an employer 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. You are protected if you are a current employee over 40 and are fired or not promoted due to age. 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, labor unions, and the federal government. The number of court decisions has determined how to count the number of employees, so you may need to consult with an attorney to decide whether or not 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 the federal ADEA does not cover your employer. 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 monetary damages (see question 15). If you are a state employee who has suffered age discrimination, you may need to discuss your situation with an employment 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 receive it annually.
- retirement pension benefits worth $44,000 or more.
- There are notable exceptions for police and fire personnel, tenured university faculty, and certain federal employees concerning law enforcement and air traffic control. If these exceptions apply to you, check with your personnel office or an attorney for details.
- 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 their age concerning 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:
- 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.
- An employer may not include age preferences, limitations, or specifications in job notices or advertisements.
- 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 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 good reasons include poor job performance 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. Suppose most people who are laid off are 40 or older, and the majority of workers kept on are younger. In that case, 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 specific job?
Yes, in minimal 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 boundary is required because a worker’s ability to do the job after a certain age is diminished.
9. Can I be turned down for a job because I am “overqualified?”
It depends. The ADEA only prohibits discrimination based on age. Although increased age 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 matches for the job. While some believe the explanation that a worker is “overqualified” is, in essence, a code word 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 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 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 hiring 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 because the company, either currently or shortly, will be required to pay retirement 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 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 illegal for employers:
- to use an employee’s age as the basis for discrimination in benefits, and
- target older workers for their staff, cutting programs because benefits were too costly.
An employer cannot terminate an older worker because benefits are too costly. The company must follow the “equal benefits or cost” rule by providing equal benefits to older and younger workers or paying the exact benefit costs for all employees. The law only allows an employer to reduce benefits based on age 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 because “it costs too much” if the employer pays the help 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?
The answer is no, as long as an employee performs his other duties. If an employee can no longer perform their job duties, however, the employer is allowed to discharge that person.
The ADEA has special exemptions for police and fire personnel, tenured university faculty and c, and certain federal employees 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 apply to you, check with your personnel office or an attorney for details.
However, to save the company money or reduce the workforce’s size 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. To be legally effective, the waiver you are asked to sign must follow specific requirements (see next section).
14. Can I be asked to sign something waiving my legal rights?
If your employer asks, you may agree to waive your rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, requires that a waiver be known and voluntary. The law sets out specific minimum standards that must be met for a release to be considered valid. Among other requirements, a valid ADEA waiver:
- It 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.
- must specifically refer to ADEA rights or claims. Some companies use a “general release,” where you agree to waive any claims against the company without specified types of claims. While this may be valid in other situations, it will not be legally sufficient to waive your ADEA claims.
- 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 your employer reduces your retirement benefits a few years later, you may still be able to file a lawsuit.
- must be in exchange for valuable consideration. This is a legal term that means 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 extra in return for signing a waiver, it is not valid under the ADEA.
- I must advise you in writing to consult an attorney before signing the waiver. While you do not have to 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 seven days to revoke it after signing it. If you are presented with a waiver that you must sign immediately without the time to consider it properly and 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.
In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination programs, the minimum requirements for a valid release 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 type of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the generations of all the employees in the same job classification or unit of the company to whom the request 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 an attorney to determine whether the signed waiver has complied with the more extensive requirements.
The U.S. Supreme Court has also ruled that you may challenge the waiver’s validity without first giving back the money you received in exchange for the release. Before 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 criminal 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 and 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 2000 ruled that state employees were not allowed to use the ADEA’s provisions, allowing 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 had no authority to authorize certain age discrimination lawsuits against states. Thus, the ADEA no longer protects you from age discrimination if you are a state employee. However, you may be covered by the same state’s laws discriminating against you. If you are a state employee who has suffered age discrimination, you may need to discuss your 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 agency responsible for investigating charges of job discrimination related to an individual’s age in workplaces of 20 or more employees. Most states enforce state laws against discrimination (see question 18 below).
17. What are the remedies available to me?
Victims of age discrimination can recover remedies, including:
- back pay
- front pay
- 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 the employer knowingly violated the ADEA or acted in “reckless disregard” of its provisions
- other actions will make an individual “whole” (in the condition they would have been but for the discrimination).
Remedies also may include payment of:
- attorneys’ fees
- 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 may also be required to take corrective or preventive actions to cure the source of the identified discrimination, minimize the chance of its recurrence, and discontinue the specific discriminatory practices involved in the case. State law may allow for more powerful or different remedies than federal law. For more information, see this page on state age discrimination laws.
18. How can I file a complaint / how long do I have to file?
I am 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 based on 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 with the state administrative agency, the Pennsylvania Human Relations Commission (PHRC), the Equal Employment Opportunity Commission (EEOC), or the federal administrative agency. The two agencies have a “work-sharing agreement,” which means that the agencies cooperate 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. Suppose your workplace has 15 or more employees. In that case, you may file with either agency unless your claim is based on a discrimination category not covered under federal law, such as possessing a GED diploma or participating/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 at https://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.
Pittsburgh Regional Office
11th Floor State Office Building
300 Liberty Avenue
Pittsburgh, PA 15222
Phone: (412) 565-5395
TTY: (412) 565-5711
Counties: Allegheny, Armstrong, Beaver, Butler, Cameron, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Potter, Venango, Warren, Washington, and Westmoreland.
Contact your local EEOC office below to file a claim with the EEOC office. More information about filing a claim with the EEOC can be found at https://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 — Pittsburgh Area Office
1001 Liberty Avenue Suite 300
Pittsburgh, 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 before filing your claim, if possible. Yet if you cannot find an attorney to assist you, it is unnecessary to have an attorney 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 work in a city or county with local anti-discrimination law or “ordinance.” Some cities and counties in Pennsylvania (including Philadelphia and Pittsburgh) 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 website for further information.
D. How can my attorney or I pursue a claim in court in Pennsylvania?
Suppose an administrative agency successfully resolves your case. In that case, it may not be necessary to hire an attorney or file a lawsuit (to resolve your issue, you probably will be required to sign a release of your legal claims). If the PHRC or EEOC does not resolve your case, 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 punitive or liquidated damages (damages intended to punish the employer) and does not allow for a trial by jury, many Pennsylvania attorneys choose to file employment discrimination cases in federal court. A lawsuit 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. However, compensatory damages are not capped or limited under the Pennsylvania anti-discrimination law, 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 the date you receive the information.)
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, you may lose your ability to pursue a discrimination case.
Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment, and wrongful termination cases for more than 20 years. High-end representation for high-end cases and clients. Contact us today.