Age Discrimination

What is age discrimination?

Age discrimination occurs when an employer treats a job applicant or employee less favorably because of his or her age. In North Carolina, age discrimination is only unlawful when it is directed against people who are age 40 or older. It is also not unlawful for an employer to favor an older worker over a younger worker because of the employees’ age.

What laws make age discrimination illegal?

The Age Discrimination in Employment Act (ADEA) protects employees 40 years of age and older from being discriminated against in the work place due to their age. Covered employers are therefore prohibited from discriminating against an older employee when it comes to making decisions such as who to promote, hire, or fire. They also cannot use age as the basis for decisions about an employee’s benefits, compensation, job assignments, and training.

The ADEA only applies to employers with 20 or more employees. It covers local and state governments, as well as apprenticeship programs. As a general rule, employers may not include age preferences in advertisements for a job opening. However, employers may require that employees be of at least a certain age to apply.

The ADEA also makes it unlawful for an employer to retaliate against an employee who files an age discrimination charge.

What do recent court cases show?

In a recent age discrimination case, Gross v. FBL Financial Services, Inc., the Supreme Court held that an employee must show that the employer would not have taken the adverse action if not for the employee’s age. This ruling is significant, because it may make it more difficult to prove age discrimination than it is to prove other forms of discrimination protected under Title VII of the Civil Rights Act of 1964. Age discrimination plaintiffs may be held to a higher standard of proof than other victims of illegal discrimination.

Can an employer ask an employee to waive their ADEA rights?

Sometimes an employer may ask an employee to waive their rights under the ADEA in order to settle a court claim or as part of an exit incentive program accompanying termination. The ADEA has outlined specific standards that must be met in order for the waiver to be valid.

Among other requirements, a valid ADEA waiver must:

  • be in writing and understandable
  • specifically refer to ADEA rights or claims
  • not waive rights or claims that may arise in the future
  • be in exchange for valuable consideration
  • advise the individual in writing to consult an attorney before signing the waiver
  • provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it

What can I do?

If you believe you have been discriminated against at work due to your age, call Patterson Harkavy toll free at 1-800-458-2541 or contact us online.