Federal and State Protections May Help Stop Senior Discrimination

These difficult economic times are especially trying for seniors. Many have lost their jobs and are facing difficulties finding new careers; others are struggling to keep current positions in a market that can hire younger workers at significantly lower costs.

The story of one older woman who is fighting to keep her job has brought public attention to this issue in a big way. The grandmother returned to her position at Walmart after suffering a heart attack, only to find her job description had changed and she had been assigned new duties. Instead of having a relatively sedentary job like the one that she had counted on, when she came back, she was told to move 200 loads of merchandise without any assistance.

Ms. Squatrito felt discriminated against, but her plight - as reported on by Reuters - is not necessarily indicative of any form of inappropriate activity on the behalf of her employer. Employers that are aware of a disability are required to make reasonable accommodations that would allow the employee to still perform his or her job duties whenever possible. Asking an elderly woman with known heart problems to move heavy materials is likely a violation, especially when there are many light-duty tasks at any given Walmart store that she could have been asked to perform instead.

Part of an Ongoing Pattern of Discrimination?

Ms. Squatrito further alleges that the recent discriminatory behavior she is enduring is part of a management scheme over the past eight years to try and force her to quit (what is known in legal circles as "constructive termination," or making the conditions so unlivable that an employee feels he or she has no choice but to quit). She asserts that her higher wage - $22 per hour, earned from working for the company for years and receiving merit increases over time - serves as incentive for removing her from her position since, for that price, Walmart could replace her with three younger employees whose starting salaries are much lower than hers.

Although some difficulties faced by older Americans in the workplace could just be connected to the high level of competition in the job market (particularly since it is fueled by a high national unemployment rate), others are not. They could be acts of age discrimination. Discriminatory practices are illegal at both the federal and state levels, and there are protections in place for employees in the public and private sectors alike.

Federal Protections

Under the Age Discrimination Employment Act (ADEA), discrimination against individuals age 40 and over is prohibited. This piece of legislation was enacted after Congress found that older workers were often disadvantaged in efforts to obtain employment. The ADEA applies to public and private workplaces, including government agencies, with more than 20 employees.

Under this law, employers are not allowed to set arbitrary age limits that do not correlate to job performance. Employers cannot fire, fail to hire or refuse to hire anyone based on age. Employers are further prohibited from age-related discriminative practices based on compensation, terms, condition and privileges of employment.

Unfortunately, this type of discrimination does not receive the same level of judicial scrutiny as other forms as it tends to be less obvious and has, in the past, been less prevalent. Race and sexual discrimination tend to receive a higher level of judicial awareness. The disparity is due to the fact that, unlike race, age can be relevant to some occupations. For instance, some military or law enforcement positions may require specific age limits due to the physical stresses that the job will have on the employee's body.

The ADEA recognizes the fact that there are some scenarios in which there is a valid reason to place an age-related restriction on potential hires by including several exceptions. These include age limitations that are supported by bona fide occupational qualifications that could make it unsafe to perform job duties over a certain age.

ADEA Protections Defined by Landmark Supreme Court Case

The ADEA's regulations were tested by the Supreme Court three years ago. In Gross v. FBL Financial Services, Gross alleged he received a demotion based on his age. The Supreme Court held that the burden is on the employee to establish that age was the only reason for the adverse employment action. The justices went even further, though, by explicitly stating that the burden does not shift to an employer to establish that the demotion would have occurred regardless of the employee's age. As a result, any employee alleging age discrimination may be required to prove both that the discrimination occurred and that there were no other motivating factors for the adverse action.

The landmark Gross ruling places the burden on the plaintiff and makes it quite difficult to prove age discrimination under the law. Not all justices agreed with the ruling, though, and it narrowly passed with a 5-4 vote.

In a scathing dissent, one justice claimed that the decision abandoned a long-held interpretation of current law. In fact, a footnote to the majority opinion even states that Congress should undertake the burden to enact legislation that would overturn the strict interpretation of the ADEA demanded by the law's wording. Civil rights advocates, senior organizations like the American Association of Retired Persons (AARP) and plaintiff's attorneys across the nation have taken up that rally cry and are lobbying for changes. In response, new legislation has been introduced in Congress to ease the burden on plaintiffs and put age discrimination cases on the same playing field as gender and race discrimination suits.

State Protections

States can expand upon federal protections, offering a greater level of safeguards for older workers or extending the law to cover employers with fewer than 20 workers. Pennsylvania has enacted its own version of the ADEA, the Pennsylvania Human Relations Act (PHRA). The PHRA prohibits discriminatory practices based on age. Although it does not expand protection beyond the age of 40, it does provide additional protections based on the definition of an employer. And, it expands the federal mandate that only businesses with more than 20 workers are held to the provisions of the law, instead requiring that any employer with four or more workers not discriminate on the basis of an employee's or applicant's age.

Taking Action Against Discrimination

If a worker is the victim of age discrimination, a claim can be filed under both state and federal laws. If the claim is based on Pennsylvania state law, a statute of limitations applies requiring the worker to file within 180 days of the alleged act of harm. Remedies including compensation for lost wages, money damages, reinstatement and promotion are available to victims of discrimination.

If you or a loved one is a victim of age discrimination, it is important to contact an experienced employment rights attorney to discuss your legal rights.