Age Discrimination, Harassment or Retaliation

The Age Discrimination in Employment Act of 1967 (ADEA) is a federal law that prohibits discrimination against individuals who are forty (40) and older in the workplace. It aims to protect older workers from unfair treatment in hiring, promotion, compensation, and other terms and conditions of employment based on age.

Discrimination claims based on age require you to demonstrate: (1) You are over 40 years of age; (2) You are performing your job satisfactorily; (3) You experienced an adverse employment action; and (4) You were treated differently than similarly situated younger employees.

An adverse employment action means you must have suffered some harm with respect to an identifiable term or condition of your employment, such as termination, demotion, decrease in pay, a transfer, or reassignment with different responsibilities.

It is helpful to your claim if you were replaced by someone substantially younger, because the greater the age disparity between you and your replacement, the stronger the inference of discrimination.  However, you can still prevail if your replacement is not substantially younger than you.  All that is required is that the employee who replaced you is younger.  You can still have a claim under the ADEA if you were replaced by someone over forty.

Also, age-based discrimination can occur even between people within the same age group. This means that you can still prevail on an ADEA claim if the person who terminated you is your age or older.

If your employer presents you with a severance offer that includes a waiver of your ADEA the employer must allow you at least 21 days to consider the offer.  The 21-day consideration period begins on the date of the employer’s final offer.  If material changes are made to the final offer, the 21-day period starts over.

Signs of Possible Age Discrimination Include:

• Age-Related Comments or Insults.
• Getting Passed Over or Turned Down for a Promotion.
• Forced Retirement.
• Your Position Becomes Eliminated.
• Layoffs and Demotions of More Senior Employees.
• Preferential Treatment.
• Unfair Discipline Practices..

HARASSMENT/HOSTILE WORK ENVIRONMENT BASED ON AGEISM

A hostile work environment claim based on age involves widespread and/or severe harassment that creates an intimidating, offensive, or hostile atmosphere that interferes with your ability to perform your job. Courts hold that for harassment to be illegal, it must rise beyond simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is frequent, severe, and/or results in termination, demotion, or other adverse employment actions that affect an employee’s job benefits, such as a transfer, reduction in hours, or change in work schedule.

When deciding whether the harassment rises to the level of creating a hostile work environment courts look at the totality of the circumstances, including the frequency of the harassing conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. A hostile work environment is one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.”

Generally, an isolated incident does not constitute a hostile work environment unless it is severe and/or physically threatening in nature. Hostile environment claims typically involve repeated conduct that often occurs over a series of days, weeks, months, or even years.

IF YOU ARE EXPERIENCING DISCRIMINATION OR HARASSMENT BASED ON YOUR AGE, YOU SHOULD REPORT IT IN WRITING.  IT DOES  NOT HAVE TO BE FORMAL AN EMAIL IS FINE.  UNDERSTANDABLY, IT IS SCARY AND MANY EMPLOYEES DON’T REPORT IT BECAUSE THEY FEAR RETALIATION.  HOWEVER, IF YOU DON’T REPORT IT, YOU MAY NOT BE ABLE TO BRING A CLAIM. MOREOVER, IF YOUR EMPLOYER RETALIATES, THEN YOU HAVE A STRONGER CLAIM BECAUSE YOU REPORTED IT. YOU SHOULD USE THE WORDS “AGE DISCRIMINATION” WHEN YOU REPORT IT TO YOUR EMPLOYER

RETALIATION BASED ON AGE

If a manager, supervisor, or administrator terminates you, demotes you, reprimands you, or takes any other type of materially adverse action against you for reporting that you are being discriminated against or harassed based on your age, you may have a claim against your employer for retaliation.

It is illegal for an employer to retaliate against you because you reported discrimination or harassment based on your age. Reporting harassment and/or discrimination is a protected activity. It is helpful to your claim if your employer’s retaliatory conduct occurs close in time to your complaint of sexual harassment or discrimination.

The Courts take a broad view of what constitutes retaliation. Retaliation can be subtle or blatant.  It consists of any negative action taken by an employer that would deter a reasonable employee from raising concerns or reporting discrimination or harassment.

Below is an inexhaustive list of examples of Retaliation.  However, retaliation is not limited to what is set forth below and can consist of many things:

• Reprimanding the employee shortly after they report harassment or discrimination.
• Changing the employee’s schedule
• Denying the employee training opportunities
• Denying the employee a promotion
• A reduction in pay
• A reduction in hours
• Giving an employee a performance evaluation that is lower than it should be
• Transferring the employee to a less desirable position ot location
• Subjecting the employee to increased scrutiny
• Leaving the employee out of important meetings
• Constantly criticizing the employee

The Retaliation does not need to be employment or workplace-related if it stems from you reporting harassment or discrimination based on your sexual orientation or gender identity. Examples of non-related retaliation include:

• Your employer takes action against a family member.
• Your employer disparages you to others.
• A false report to the authorities.
• It can continue even after your employment ends.

Unfortunately, reporting harassment or discrimination does not shield you from discipline or discharge if your employer has legitimate reasons. But your employer must have a non-retaliatory and non-discriminatory reason for their actions. Your employer cannot make up a reason to terminate you when the real reason is discriminatory or because you reported harassment or discrimination. The burden is on the employee to demonstrate that the employer’s reason for the termination is a pretext, meaning a dishonest reason not based on facts.

In order to pursue a claim for age discrimination,

• Your employer must have at least 20 employees; and
• You must also file a charge of discrimination with Equal Employment Opportunity Commission (EEOC) or South Carolina Human Affairs Commission (SCHAC) within 300 days of the alleged discriminatory conduct. It is preferable to have an experienced employment lawyer draft your charge. However, you don’t need a lawyer to file a claim with the EEOC or SCHAC. You can file a claim with these agencies on your own. See https://www.eeoc.gov/how-file-charge-employment-discrimination  Or go to the SC Human Affairs Commission website. https://schac.sc.gov/employment-discrimination/how-file-employment-complaints.