South Florida Sun-Sentinel Palm Beach (Sunday)

The long, hard road of fighting age bias

- By Jackie Stewart

A wave of pandemic-related early retirement­s may be about to reverse itself. Instead of older Americans fleeing the labor force, more are expected to participat­e in it over the coming years.

Still, many older Americans face age bias in the workplace even though the Age Discrimina­tion in Employment Act prohibits discrimina­ting against workers 40 and older.

Although there are risks to fighting back and filing a complaint, “going quietly is generally not a good idea,” says Tom Harrington, a principal at the Washington, D.C.-based Employment Law Group. Age discrimina­tion often takes the form of older workers who are unjustly fired, laid off or passed over for hiring and promotions. Age-based harassment is also prohibited.

Proving age discrimina­tion isn’t easy because there is often little direct evidence of misconduct. Instead, there may be more indirect clues, such as coded language, including statements like the company has a “desire to bring in new blood” or “they are looking to reinvigora­te our workforce,” Harrington says.

If you believe you are facing age-based harassment or discrimina­tion, document the incidents in real time. Write down inappropri­ate comments along with who made the remarks and when. Note any patterns you see of older workers who were pushed out and younger workers who were hired instead.

Most employers who terminate a worker because of age do so under the guise of poor performanc­e. If you receive a performanc­e review that is unexpected­ly negative and you believe it was motivated by ageism, find out your company’s policies for filing a complaint and submit it to the appropriat­e person, usually someone in human resources.

Filing a complaint with an employer is a legally protected activity and often serves as a warning shot for the company to back off and review its actions. That employer is now on notice and could be hit with a retaliatio­n complaint if the company mistreats you for going on the record with your concerns. Retaliatio­n complaints are often easier to prove than the initial discrimina­tion claim, Harrington says.

To pursue an age discrimina­tion case under the Age Discrimina­tion in Employment Act, the first step for nonfederal workers is filing a complaint, known as a “charge of discrimina­tion,” with the EEOC. Depending on where they live, nonfederal workers have either 180 days or 300 days from the date of the last incident to file. The agency will begin the investigat­ion and notify the employer within 10 days. On average, investigat­ions take about 10 months.

After investigat­ing the complaint, the agency will issue either a letter of determinat­ion, which attests that the EEOC believes discrimina­tion likely occurred, or a dismissal and notice of rights, which means the investigat­ion couldn’t reasonably conclude that discrimina­tion took place. Either way, you still have 90 days to file your own lawsuit after the EEOC finishes its investigat­ion.

Mediation through the EEOC is another option. If you go that route, the mediator won’t try to determine if discrimina­tion occurred. Instead, the mediator will see if you and your employer can work out your concerns.

 ?? THICHA SATAPITANO­N/DREAMSTIME ??
THICHA SATAPITANO­N/DREAMSTIME

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