Age Discrimination is Rampant, Difficult to Prove

New York employment attorneys explain why

You’re about to lose your job and you suspect you may be replaced with someone younger. How can you tell if it’s age discrimination?

“It happens a lot in overall restructuring,” says Allyson L. Belovin, an employment and labor lawyer at Levy Ratner in New York City. “When mostly older people are let go, it sends up red flags.”

If you and at least one other employee have lost your jobs in the same layoff, federal law allows you to get a list from your employer of those let go, including ages and positions. But even if you are the only worker terminated, you can file a complaint.

The federal Age Discrimination in Employment Act, passed more than a half-century ago, outlaws discrimination against older workers, and New York state and city laws provide even greater protection, covering smaller companies and allowing for attorney’s fees and monetary damages to punish an employer for egregious conduct. Despite those protections, it’s a common occurrence. In New York, 23.2% of the 3,478 federal workplace discrimination complaints in 2018 involved age discrimination, according to the U.S. Equal Employment Opportunity Commission.

Age-discrimination complaints are often an uphill battle, because employees must prove their age was the only reason for being let go. Businesses often contend they were simply trying to cut costs. 

In non-termination cases—an older employee is demoted, or shut out of team projects more likely to lead to promotions or bonuses—evidence can be scarce, making them difficult to prove.

“Many employers are sophisticated enough not to be blatant about it,” Belovin says.

Before making a complaint, however, be sure the situation actually involves discrimination. A boss who curses at you or says mean things isn’t violating the law, unless the comments are discriminatory. It’s also important to follow the steps outlined in your company’s employee handbook. 

Before signing a severance agreement, or even making a complaint, it’s a good idea to talk to an employment lawyer. One of the biggest mistakes employees make is failing to notify their employers about a concern, says Marijana Matura, a partner at Kessler Matura on Long Island.

“We always recommend putting a complaint in writing,” she says. “It puts the employer on notice there’s a violation. They then have a duty to act, to investigate to see if there’s any credibility to the claim.

“Put the ball in their court; their failure to act on that is liable.”

You can initiate with a verbal complaint, but one in writing is preferable, as it gives a timestamp and more concrete form of evidence. The stronger the evidence—be it documents, recordings and/or testimony from colleagues—the stronger your case. 

Before bringing a federal lawsuit, an employee—or their attorney—must file a charge with the EEOC. After 180 days, a “Notice of Right to Sue” can be requested from the EEOC; once that is issued, a lawsuit can be filed. Because age discrimination can cause problems ranging from insomnia to depression, damages can go beyond loss of income.

Some complaints are resolved in a matter of months.

Matura notes that businesses are often insured against discrimination claims. “If you have great smoking-gun evidence, she says, “typically you can resolve it pretty quickly.”

For more information about this area, see our overviews on employment law for employees and discrimination.

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