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Age discrimination involves treating someone (an applicant or employee) less favorably because of his or her age.
The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.
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. As long as an employee is performing his or her job duties, the answer is the older employee cannot be fired based on age. If an employee can no longer perform his or her job duties, however, the employer is allowed to discharge that person.
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:
to use an employee's age as the basis for discrimination in benefits, andto target older workers for their staff cutting programs on the basis that benefits were too costly.
Claims of unlawful discrimination on the basis of age can be difficult to prove. To be successful, the employee must show that some adverse action was taken on the basis of his or her age. Such an adverse action can be shown by direct evidence, but such evidence is not usually available. It is not enough for an employee to show that he or she was replaced by a younger person, although this fact can serve to strengthen a claim under the ADEA. An employer can only be held liable for age discrimination if the employee can show that an intentional action was taken against the employee because of the employee’s age.
Victims of age discrimination can recover remedies to include:
back pay,hiring,promotion,reinstatement,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 employer knowingly violated the ADEA or acted in "reckless disregard" of its provisions,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:
attorneys' fees,expert witness fees, andcourt costs.
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