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Age Discrimination Workplace
Becoming old can be a daunting experience, having to worry about employment when you become older can be even worse. Age discrimination should not be something an older person in the workforce has to worry about, but today it is still one of the most common forms of discrimination.
This paper will review the definition of discrimination and age discrimination, what the current laws are regarding age discrimination, how prevalent age discrimination is today, some of the perceived plusses and minuses of an older workforce, a personal story about age discrimination, and some methods on how to prevent age discrimination in the workplace.
Discrimination is a word that carries a very high negative connotation. It is a word and act that society has been struggling with every since there were two people on this planet. The dictionary defines discrimination as a treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit.
There are many types of discrimination in the workforce; race, color, religion, sex, national origin and age. Age discrimination is defined as an unfair or unequal treatment of an employee by an employer because of the employee's age. Being discriminated against for any reason is a battle that we have to continue to fight against. As workers become older in the workforce today, they are a group that has to be protected against unfair or unequal treatment.
The United States government made headway against discrimination by adopting the Civil Rights Act of 1964, which is commonly known as TitleVII. This act prohibits employment discrimination based on race, color, religion, sex, or national origin. From there the Age Discrimination in Employment Act of 1967 (ADEA) was introduced. The Age Discrimination in Employment Act of 1967 protects individuals between the ages of 40 to 65 from employment discrimination based on age.
The upper limit was extended to 70 in 1978 and then the limit was removed completely later on. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/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.
It is also unlawful to 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.
The ADEA applies to employers with 20 or more employees who work more than 20 weeks in a year, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
This act provides substantial and adequate support for people 40 years or older when finding a new employer.
When it pertains to older workers and benefits, The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may 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.
The United States Equal Employment Opportunity Commission (EEOC) enforces the ADEA. If a person believes they have been discriminated against because of age, they have to file a complaint with the EEOC. A charge must be filed with the EEOC within 180 days from the date of the alleged violation.
This limit can be extended to 300 days if a state or local anti-discrimination law also covers the charge. To be able to file a case against age discrimination, you must establish prima facie. To establish prima facie, you must prove: 1) they are in the age group protected by the ADEA; 2) they were discharged or demoted; 3) at the time of the discharge or demotion, they were performing their job at a level that met the employer’s legitimate expectations; 4) following discharge or demotion, they were replaced by someone of comparable qualifications outside the protected class. If all four areas are met, the burden of proof moves to the employer to prove there was no discrimination.
Age discrimination is a real problem in the courts system. Between 1997 and 2007 the amount of cases have varied between 15,000 to 20,000 cases a year. In 2007 there was 19,103 charges filed to the EEOC. That would work out to approximately fifty suits that are filed daily regarding age discrimination. Of those cases, sixty-two percent were thrown out because of No Reasonable Cause, where the EEOC found no reasonable cause to believe that discrimination occurred based upon the evidence obtained in the investigation.
The charging party may still exercise the right to bring private court action. Seventeen percent were dismissed because of Administrative Closures, for reasons such as failure to locate charging party, charging party failed to respond to EEOC communications, no statutory jurisdiction, etc. That leaves twenty one percent of age discrimination receive some type of Merit Resolutions, these include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations. The total of Merit Resolutions has steadily increased from a low in 1997 of almost twelve percent to a high in 2007 of twenty one percent.
In the last ten years employers have paid out almost 600 million dollars in settlements. In 2007 the total was 66.8 million dollars. Age discrimination cases can receive the largest damage awards from juries, even compared to the more publicized sexual harassment cases. There are a variety of reasons for this. Some are strictly legal, others have more to do with the emotional attachment jurors often have to age discrimination cases.
There are two types of discrimination in the workplace, disparate treatment and disparate impact. Disparate treatment is blatant discrimination by the employer. A company’s employment practice is based on a practice, which intentionally treats a protected class member(s) less favorable. Because the practice is intentional, punitive damages may be imposed.
Disparate impact is subtle discrimination. A company’s employment practice appears to be neutral, but the effect or impact unreasonably discriminates against a protected class. Desperate impact discrimination is more complicated and harder to prove than desperate treatment. Quite often it results from company policy that excludes a certain individual or individuals from the job or from promotions. The policy was not designed to exclude them; that was just the unfortunate result. Penalties resulting from desperate impact discrimination are usually less severe than those resulting from desperate treatment discrimination.
Age discrimination has evolved and developed into something that effects productivity in the workplace. Some companies prefer younger workers to work for them, thinking that they offer better productivity and higher competition. Other companies prefer to have older employees because they are more experienced and harder workers. Yet these older workers may somehow be mistreated. Today’s culture shows that younger workers are smarter and head towards achievement.
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