Age Discrimination Claims by Workers Reach Record High

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Older workers, hit hard by the recent layoffs and job losses, filed a record-high number of age discrimination complaints against private sector companies last year, the highest level in almost two decades.

About 24,580 charges were filed with the Equal Employment Opportunity Commission (EEOC) in the fiscal year that ended Sept. 30, 2008, jumping 29 percent over the 2007 total for age discrimination, and even higher than the 15 percent rise in discrimination charges overall, which include claims by race, sex and disability.

With continuing layoffs and the unemployment rate at 8.1 percent, age discrimination claims may even be higher this year, says one veteran employment attorney.

“The wave is still building,” says Gerald L. Maatman Jr., editor of the annual Workplace Class Action Litigation Report for Seyfarth Shaw, a law firm in Chicago that annually analyzes claims against employers in federal and state courts. Maatman predicted that the number of age discrimination complaints will peak in the third quarter of this year.

There’s no question that layoffs trigger cases, says Elaine Drodge Koch, a partner in the Kansas City, Mo., law firm Bryan Cave. “People are questioning, ‘Why was I laid off?’ ” Workers may feel unfairly targeted because they’re over 40 and so they file an EEOC complaint. Claims are also rising, she says, because “we’ve got managers doing layoffs who haven’t done them before,” and they may not follow safeguards such as various statistical tests before issuing pink slips.

If the employer asks laid-off workers to sign a waiver agreeing not to sue, federal law requires the employer to supply the employees with data on how many are age 40 and older, along with other layoff-related information. As part of considering the possibility of age discrimination, EEOC compares “the ages of who the employer decided to keep and who was cut,” says Ray Peeler, a senior attorney adviser at the EEOC. The agency also will weigh all the surrounding facts and circumstances to determine whether age discrimination influenced layoff decisions.

The Age Discrimination in Employment Act of 1967, or ADEA, protects anyone 40 or older from employment discrimination in hiring, firing, layoffs, promotions and pay. It applies to employers with 20 or more employees, including state and local governments, and covers benefits including severance pay if it is offered.

A typical age discrimination case may charge that the stated reason for a layoff is a pretext, “not the real thing,” explains Koch. Or older workers may say they’ve been laid off when someone younger with similar performance and credentials was allowed to stay. Or, a new trend, she says, is a fiftysomething worker alleging unfair discharge, or treatment, compared to a fortysomething worker. In previous downturns, the workers left on the job were in their 20s or 30s.

Age discrimination cases can be hard to prove—they’re seldom as overt as race or gender discrimination cases, which generally have clearer evidence, including supervisor’s comments or behavior. Only two of the top 10 class action workplace discrimination settlements in 2008 involved age discrimination, according to the Seyfarth Shaw litigation report.

In one, more than 150 California television writers who claimed they were passed over by talent agencies won $4.5 million. The EEOC also won a huge age discrimination case in 2007 against the Sidley Austin law firm in Chicago, which agreed to pay $27.5 million to 32 former partners.

Yet for every million-dollar settlement, there are dozens of other age discrimination cases that go nowhere for various reasons: The EEOC determines there’s no reasonable cause for litigation, the people involved can’t be found or the plaintiff requests a dismissal. Only about 20 percent of cases are resolved through settlements or other dispute resolutions.

Before individuals can sue for age discrimination, they must file an EEOC complaint and wait 60 days. Complaints can be made against almost any employer—from defense contractors to retailers—but attorneys say recent complaints have been concentrated in sectors where job cuts have been biggest, such as financial services and construction.

Maatman says he expects the massive dislocations and job losses to fuel more age discrimination charges, especially as laid-off workers discover they cannot find a new job. “People feel that without any financial security, they have no choice but to protect themselves.”

If you think you have a case

Age discrimination is a growing problem for workers over 40. If you feel that you were treated unfairly because of your age, you have several options. Among them:

•  If you still work for the organization, you could bring your concerns to the human resources department or through other internal complaint forums. Many companies want to know if they have a manager who’s discriminating and will handle the issue internally, says attorney Koch.

•  While employed or after being fired, file a complaint with the EEOC. You may go in person to EEOC district and field offices in major cities. Or go online and see whether you qualify, then fill out an intake questionnaire and mail it to the appropriate EEOC office. You have 180 to 300 days from the day of your layoff—or whenever the discrimination occurred—to file with the EEOC.

• You also may hire an attorney, usually one who represents mainly workers. Initial consultations are sometimes free or at a reduced charge; after that, you’ll be charged a retainer or an hourly rate.

• If you have just received your layoff notice and a proposed severance agreement, take a few days to consider whether it’s the best deal for you and your family. Many severance agreements require that staffers waive their rights to sue under age discrimination laws in exchange for cash payouts. “It’s a difficult decision to forgo severance to fight in court,” says EEOC attorney Ray Peeler. So before you waive your rights to the ADEA, consult an attorney or a veteran career counselor.

• Remember, under federal law you have 45 days to consider a severance agreement from a group layoff—or 21 days for severance from individual firings—and seven days to revoke it after signing. Even if you waive your rights, you can still file an EEOC charge, but you will not be entitled to any benefits if your case is won.

• You may be able to negotiate for more or better severance terms. Using a diplomatic approach can be “extremely effective to get additional benefits,” says Gail Geary, author of the Over 40 Job Search Guide and owner of Atlanta Career Transition. You could negotiate for more severance pay, a longer period of paid medical benefits, more vacation time, a temporary reinstatement to finish some work, or extra payment for outplacement services, she says. You might want to role-play this discussion ahead of time so that you are tactful.

Vickie Elmer writes about business and blogs at Workingkind.com.