Considering An Age Bias Case Vs. Ex-Employer

Q. I worked for a large local company until September of last year. I was doing my job well and was getting the maximum amount in raises.

I had just one work performance write-up. Despite that, our regional manager, who came in for a visit one day, complimented me on my work. When he returned for another visit, however, he told me I had 90 days to find a new job. I was stunned.

I called the labor department, and the person I spoke with said the supervisor's action was unfair and illegal. Still, I didn't want to bring any legal action then because I was a 57-year-old widow with a 10-year-old son. I needed a job and benefits. After the 90 days passed, the human resources manager told me to leave. I refused and told him the company was trying to get rid of me because of my age. So for the next year and a half I was written up for everything. And the new regional manager threatened to fire me three or four times. But he never did.

I stepped down as manager in February 2007 to a lesser job. I quit seven months later. I couldn't take the humiliation any longer. Do I have grounds to bring an age-discrimination or harassment suit against this company?

A. For answers, I turned to the federal agency that enforces anti-discrimination statutes in the workplace: the U.S. Equal Employment Opportunity Commission.

You could indeed have the basis for a claim under the Age Discrimination in Employment Act, but a larger issue now is whether the statutes of limitation for the claim have expired.

In New York State a claim must be filed with the EEOC within 300 days from the date of the last alleged violation, said Elizabeth Grossman, regional attorney in the agency's New York district office in Manhattan. But state laws may provide a longer statute of limitation, she said.

She suggests that you contact a private attorney to explore whether the statutes of limitations have expired on your claims, which involve discrimination, harassment, retaliation and job loss.

Under the ADEA, it is unlawful to discriminate against a person because of age "with respect to any term, condition, or privilege of employment," Grossman said. The areas of employment covered include hiring, firing, promotion, layoff, compensation, benefits, job assignments and training, Grossman said. The law protects both employees and job applicants, she said.

As for the on-the-job age harassment, she said that becomes unlawful when enduring the "offensive" conduct becomes a condition of continued employment and the conduct is "severe or pervasive" enough to create a work environment that "a reasonable person would consider intimidating, hostile or abusive."

That leads to the next possible claim: retaliation. Since the write-ups began after you claimed age discrimination, Grossman said, you should also explore with a private attorney whether you were retaliated against.

"It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age-discrimination charge, testifying or participating in any way in an investigation, proceeding, or litigation under the ADEA," Grossman said.

Under a claim of job discrimination, even leaving your job could be considered "constructive discharge," that is you left, or essentially discharged yourself, because the office environment was unbearable.

"A claim for constructive discharge is available under Title VII (of the Civil Rights Act) when the harassment or discrimination is so egregious and intolerable that quitting is a fitting response," Grossman said.

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