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Questions about AEDA Law

The Age Discrimination in Employment Act (ADEA), enforced by the Equal Employment Opportunity Commission (EEOC), protects both employees and applicants over 40 years of age and older from discrimination on the basis of age in various aspects of employment. These include compensation, promotions, hiring, discharge, and other terms and conditions of employment. Often, dissatisfaction over compensation and severance pay lead to lawsuits against companies.

Below, some of the top questions on age discrimination laws are answered by legal experts.

Our company is laying off people and explicitly targeting older workers. I may be notified before turning 40 years, though I will reach that age by the separation date. Will I still have rights under ADEA?

To be eligible under ADEA, an employee will have to be 40 years at the time of notification of termination. Workers over 40 may receive higher pay than other employees, which might be considered a valid business reason for termination by the court. If you can prove beyond doubt that the company is specifically targeting employees approaching the age of 40, it would be considered in bad faith by the EEOC. However, such claims will be investigated by the EEOC before they are submitted in court.

My company is proposing a two-months’ severance pay if I sign the separation agreement though I have served 10 years. However, another employee got one month’s pay though he had worked only for a year. Is this discrimination under ADEA?

Companies are free to choose what severance pay they will award as the law does not mandate companies to pay severance. However, if the company has a written policy for calculating the severance pay, they are obliged to follow the procedure. Also, they may not do so in violation of anti-discrimination laws, which ensure the rights of protected groups.

Find out if they have a valid, non-discriminatory reason for awarding you a severance pay less than your colleague — is he senior in position or is the company financially weaker compared to last year? You may possibly be able to negotiate for a better severance pay, but the final pay out would be at their discretion.

Should there be a substantial difference in age to file a claim under the ADEA?

The U.S. Supreme Court case of Gross vs. FBL Financial Services 2009 explicitly states it is age itself and not age-difference that is a deciding factor in cases under ADEA. Also, the burden of proof that age was indeed the reason for an adverse employment decision lies with the plaintiff. Even in cases in which the plaintiff has produced some evidence to show age was a factor for discrimination, the burden of proof will not shift to the company. The Supreme Court decision, which applies to all parts of the country, also states there will no longer be a “historically disadvantaged” age classification applied to ADEA cases.

What’s the procedure for filing a complaint under ADEA with regards to discrimination under sex, race and age?

Local rules in federal district courts may vary on filing a federal complaint. You may have to show you were discriminated against because of your age, race, or sex and not a reason related to work situations. You would need to spell out the facts to state the actual basis for filing a suit and request for jury trial. If you wish to file a Title VII complaint, approach the EOCC with a complaint and obtain a right-to-sue letter. Since the statute of limitations is 180 days, you must file your complaint within that time.

As a 43-year-old African American, I feel that my severance pay has been unfair. Since it has an ADEA waiver, am I entitled to more than what those less than 40 years old receive?

Unless there is a written agreement to the contrary, your employer may treat you differently as long as it is not illegal discrimination, the definition for which includes discriminating based on age, race, sex, national origin, disability, FMLA usage, filing for worker’s compensation, or past, current or future military obligations. If you feel your employer’s actions fall within these definitions, you may make a claim with the EOCC against your employer. This charge must be filed within 180 days from the date of the alleged violation.

Employees over 40 years are protected under ADEA as long as the discrimination is based on a reasonable business decision. It is best to ask a legal expert about your specific case.

Ask an Employment Lawyer

Tina
Tina, Lawyer
Category: General
Satisfied Customers: 8063
Experience:  JD, BBA, recognized by ABA for excellence.
4460311
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Recent ADEA Questions

  • I have completed the total process to become a substitute

    I have completed the total process to become a substitute teacher in Hamilton County Tn. and received documents stating so, was sent a letter informing of my completion and I could teach. Was accepted to substitute teach at East Ridge High. Now I have been informed I can not teach. I believe this decision was made because of my age. I am 71 years old. The school was informed that I needed to volunteer for 30 school calendar days, which is about two calendar months before I could sub. I have contacted other High Schools in Hamilton County and other Hamilton county school board members and was informed they never heard of such a rule. I believe this is discrimination by the Human Resources of the Hamilton County Board of Education.
  • I am a 54 year old female Radiology Technologist. My experience

    I am a 54 year old female Radiology Technologist. My experience involves 9 years of hospital and clinical experience combined in xray and CT. I have certifications in xray and CT(which I bought the materials and studied and passed it on my own).
    I work for a clinic system. Within that system there are 11 xray techs. I have four complaints of age discrimination. One is in the EEOC right now but it has been filed for nine months without any real results. The latest action, the one filed with EEOC is due to age discrimination in that I personally, via text which I still have, requested a position within Baptist clinic, where Kathy Lum was manager, as the xray tech. She called me back and we talked for over an hour about it. She said that she was not going to give me the job because Dr. Headley did not want me there. Dr. Headley is an employee of this institution just as I am, not an owner or administrator of any kind. She said that she was going to give the job to Jacob. Jacob is a young man who had not been certified more than a month with very very short term experience as a student radiographer. He was hired in at Northtown in June of 2013. I had changed from full-time to part-time, as the radiology tech at Northtown, under the manager's advice because my mother was about to have knee replacement and I did not want to damage my attendance record or have to leave my mother without assistance until she healed.
    The first person they hired to replace me was a young woman who had a little more experience than me but without the certifications that I had. I had been with Northtown for three years by this time. She was hired in at 1.25 more an hour than I was making at the time she was hired. She lost her job in the first 90 days after she hit a vehicle in the parking lot and did not report it. Jacob was then hired after her. Both of these people were in their 20's. Jacob was hired in making .25 more an hour than I was making at that time although I had been in the position for three years.
    After my mother's surgery and she had healed, I wanted to return to full-time status. Baptist was building a new clinic in which Kathy Lum would be the new manager. I asked Kathy is I could transfer back into full-time as the xray tech at the new clinic, Rservoir. At that time, she told me that Baptist policy was that I could not transfer out of one position into another until six months had passed.
    As previously mentioned, I texted her again later and asked if I could have the job of xray tech in the new clinic. She returned my call and said that she was giving the job to Jacob. This conversation took place in July of 2013. The clinic was supposed to open sometime before the end of the year. The position was never posted, although the employee handbook states that all positions are to be approved through Human Resources and posted for application. The clinic did not open until January of 2014 at which time, Jacob took the position of xray tech.
    The position at Northtown then became open. The xray position was not posted for Northtown either and the position was filled by another 20 something year old male who had not been certified more than 6 months with no work experience as an xray tech. I do not know when he officially took the position so I could not file on it. I filed on the job posting at Reservoir as soon as I knew the clinic and Jacob was in the position because I had no way of knowing if he was officially in that position until the clinic was opened.
    I had applied for a job at a clinic that was down the street, literally, from my house at another Baptist clinic. I was requested by the physician there but the job was given to another 20 something year old female with less than one year's experience as an xray tech. The difference between her and the guys is that her father is a provider in the Baptist clinic system. This position I should have been transferred into and should not have had to apply for it because I was already doing the same job at the clinic I currently worked in, Northtown, was in the system and had the most experience of all of the applicants who did not have any disciplinary actions taken against them. One of the administrators of the Baptist clinic system had even called me while I was working and told me that they had decided that I was a good fit for the position and that I should go ahead and inform my supervisor of my desire to work at the new clinic that was close to my house(Madison).
    Prior to this incident, there were two positions in the CT department at the Baptist Hospital, which the clinic system is affiliated with. I had worked with a girl in River Region Hospital who I had helped her get a position in the Baptist Clinic System via introductions and informing her of openings. My friend was trying to get her CT certification and I gave her the information. More details...
  • I just mediated my ADEA, retaliation, gender and wage claim.

    I just mediated my ADEA, retaliation, gender and wage claim. I will be signing the severance agreement. Both parties have agreed to the mediators proposal. I have filed an EEOC charge, however, the employer has yet to receive a copy. I chose to mediate this early as I am on FMLA and neither myself, nor the company want me to return to the business because of the position I hold. My question is, in Texas, can I still proceed with a punitive EEOC charge? I am getting conflicting advice.
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