FLORIDA AGE DISCRIMINATION ATTORNEYS

Although age discrimination was made unlawful employment practice under federal law in 1967, discrimination against older employees in the workplace remains pervasive. Older employees are commonly the victims of age discrimination based on inaccurate and stigmatizing stereotypes regarding their productivity, competence, and commitment to the job. Employers often target older employees for unfavorable treatment or termination because of their length of employment, amount of compensation, or retirement eligibility. Employers also frequently retaliate against employees who complain about or oppose age discrimination in the workplace. Our Central Florida age discrimination attorneys are dedicated to helping the victims of age discrimination fight for their rights and obtain all legal remedies they are entitled to under the law.

Laws Prohibiting Age Discrimination

The Age Discrimination in Employment Act (ADEA), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, make it is unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of age. The protection against age discrimination extends to all employees and applicants for employment. Discrimination on the basis of age is forbidden in all aspects of employment, including hiring, pay, training, promotion, job assignments, discipline, layoff, and termination. In order to be protected against age discrimination by the ADEA and FCRA, an individual must be at least 40 years of age. Individuals who are under the age of 40 are not protected against age discrimination. This means that employers are not prohibited from discriminating on the basis of age against individuals who are younger than 40 years of age.

Discrimination On The Basis Of Age Stereotypes

Under the ADEA and FCRA, employers are prohibited from making employment decisions based on age stereotypes. For example, an employer is forbidden from refusing to hire, failing to promote, or terminating an older employee based on stereotypes about productivity or competence of older employees. As the U.S. Supreme Court explained in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), “it is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with age.” In enacting the ADEA, Congress intended to protect older employees from adverse employment actions resulting from age stereotypes. As the U.S. Supreme Court observed in Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), the ADEA mandates that “employers are to evaluate older employees on their merits and not their age.”

Set forth below are remarks reflecting age stereotypes made by supervisors or managers in actual age discrimination cases filed in state and federal courts. The employee claiming age discrimination used the remarks in attempting to prove that the challenged employment decision was based on his or her age.

• * Telling the employee “you look good for your age,” “at your age you cannot produce like you once could,” “you would have to take another physical examination at your age and I don’t believe you could pass it,” at your “age it would be difficult to train for a new job or find a new job,” you have a “low motivation to adapt,” you are not “a forward enough thinker,” you are “too set in your ways,” and you “cannot adjust to the changing times.”
• * Remarking that “older people have more go wrong,” the company needs employees with “long term potential,” younger employees “accept change better,” younger employees have “more ambition,” younger employees “are more reliable and make our image look better,” “older employees have problems adapting to changes and to new policies,” and “older people have trouble with change.”

Proving Age Discrimination From Differences In Treatment

In employment discrimination cases, a discriminatory motive is most often proven under the disparate treatment theory. Courts have defined disparate treatment to mean that the employer treats an employee differently or less favorably than other employees on the basis of race, color, national origin, sex, pregnancy, religion, age, or disability. In the age discrimination context, this means that an employer treats an employee who is at least 40 years old differently or less favorably than younger employees. As observed by the U.S. Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 609 (1993), the disparate treatment of older employees “captures the essence of what Congress sought to prohibit in the ADEA.”

For example, the employer terminates an older employee for failure to meet a sales quota, but the employer does not terminate younger employees who fail to meet their sales quota. Likewise, the employer terminates an older employee for violation of a company safety rule, but the employer does not terminate younger employees who violated work rules of comparable seriousness. Similarly, an employer terminates an older employee for engaging in horseplay, but does not terminate younger employees who were involved in or accused of the same or similar conduct. As these examples are intended to illustrate the disparate treatment theory of discrimination, whether legal grounds exist for filing an age discrimination case would depend on the facts and circumstances in each particular case.

The ADEA and FCRA protect older employees from being treated more differently or more harshly than younger employees. “Proof of a discriminatory motive” in an employment decision, as the U.S. Supreme Court explained in International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), “can in some situations be inferred from there mere fact of differences in treatment.” Showing that the treatment of an older employee differs from that accorded to younger employees is a form of circumstantial evidence used to prove a discriminatory motive.

Evidence Showing You Were Subjected To Age Discrimination

As discussed more fully in our section pertaining to discrimination, because an employer will rarely admit to a discriminatory motive when taking an adverse employment action against an employee, employment discrimination cases almost always must be proven by circumstantial evidence. In our section pertaining to discrimination, we identify some of the types of circumstantial evidence that can be used to prove that an individual’s race, color, national origin, sex, pregnancy, religion, age, or disability may have played a role in the challenged employment decision.

The circumstantial evidence identified in our section pertaining to discrimination applies with equal force in the context of age discrimination claims. However, some types of circumstantial evidence arise more readily or have specific application in the context of age discrimination. In the age discrimination context, the types of circumstantial evidence that also can be used to prove that an individual’s age may have played an impermissible role in the challenged employment decision include:

• * In a termination case, the employer replaces the employee claiming age discrimination with a person who is substantially younger or less than 40 years of age. In a failure to hire or failure to promote case, the employer selects a person who is substantially younger or less than 40 years of age.
• * Comments by supervisors or managers reflecting age stereotypes.
• * The employer routinely makes the employee claiming age discrimination do undesirable or humiliating job duties.
• * The employer forces the employee claiming age discrimination to take an undesired and unwanted early retirement.
• * Repeated inquiries into an employee’s retirement plans.
• * Remarks reflecting age stereotypes by a manager or supervisor.
• * Derogatory age-related remarks, insults, or jokes by co-employees, supervisors, or managers towards the employee claiming age discrimination or other older employees in the workplace.
• * The employer’s failure to stop derogatory age-related remarks, insults, or jokes towards the employee claiming age discrimination or other older employees in the workplace even though a supervisor or manager heard or had knowledge of such comments.
• * Evidence that the employer has discriminated against other older employees. For example, evidence that the employer has discriminated against other older employees in hiring, pay, promotion, discipline, or termination can be used as circumstantial evidence to support a claim that the challenged employment decision was based on age.
• * The employer engages in a pattern of terminating or removing older employees and replacing them with younger employees.

This list is not exclusive and there are no hard and fast rules as to what type of evidence is needed in order to prove an age discrimination claim. However, if any of these things have happened to you or occurred in the workplace, you may have suffered age discrimination depending on the facts and circumstances in your particular case.

Discriminatory Remarks Reflecting Age Discrimination

Although not required to prove age discrimination, derogatory age-related remarks, insults, or jokes by supervisors or managers are the most significant evidence of age discrimination. The derogatory age-related remarks, insults, or jokes can be about the employee claiming age discrimination, other older employees in the workplace, or older persons generally. For purposes of illustration, set forth below are examples of derogatory age-related remarks, insults, and jokes made by supervisors or managers in actual age discrimination cases filed in state and federal courts. The employee claiming age discrimination used the remarks in attempting to establish that the challenged employment action was taken because of his or her age.

• * Remarks reflecting a bias, hostility, or negative attitude towards the employee because of his or her age, such as: calling the employee “old,” “too old,” “old man,” “gramps,” “old woman,” “granny,” “old one,” “old warhorse,” “old school,” and “old fashioned”; stating the employee was “too old to do the job,” “retired in place,” “so old you must have come over on the Mayflower,” “needs to retire,” “getting up there in years,” and “moves in slow motion.”
• * Remarks reflecting a bias, hostility, or negative attitude towards older employees, such as stating: “when you old guys get out of here, we’ll make some money”; older employees “need to retire”; the company has “too many older supervisors”; “we need to get rid of the old guys”; “accounts could use some younger blood”; “this company is being run by white haired old men waiting to retire”; and it would be a “good time to get rid of some of the older mediocre managers.”
• * Remarks reflecting a preference for younger employees, such as stating: business “will dry up and die if we don’t have a continued influx of new young people”; the company wants to “extend a youthful look to customers”; the company is “going to weed out the old ones”; the company is “going younger”; the company needs employees who are “young and aggressive”; the company wants to “bring some of the younger people along faster”; and manager did not want “any employee over 50 years old on his staff.”

Age As A Job Qualification: The BFOQ Defense

A narrow exception to the general prohibition against age discrimination exists. An employer is allowed to make an employment decision on the basis of age if the employer can show that reliance on age is justified by the bona fide occupational qualification defense (BFOQ). In asserting the BFOQ defense, an employer is attempting to justify a policy or practice that discriminates on the basis of age and would otherwise be unlawful age discrimination. In the age discrimination context, the BFOQ defense generally arises when an employer is seeking to justify a maximum hiring or mandatory retirement age. The employer has the burden of proving that its age-based employment policy or practice qualifies as a BFOQ exception.

The U.S. Supreme Court has set forth a two-part test for establishing a BFOQ exception. When the two-part test is satisfied, an employer is permitted to rely on age when making an employment decision. First, an employer must demonstrate that the job qualifications which it invokes to justify its age discrimination are reasonably necessary to the essence of the employer’s business. For example, because the essence of an airline’s business is the safe transportation of its passengers, restrictive job qualifications for pilots are reasonably necessary to further the interest in public safety. Second, the employer must show a substantial factual basis for believing that all or nearly all persons over the particular age would be unable to perform the duties involved safely and efficiently. As an alternative to the all or nearly all requirement, an employer can demonstrate that it is impossible or highly impracticable to determine on an individual basis whether each employee can perform the duties of the job involved safely and efficiently.

Courts have consistently determined that the BFOQ defense only applies under rare and exceptional circumstances. For example, courts have held that a mandatory retirement age or maximum hiring age was not justified by the BFOQ defense under the following circumstances: a mandatory retirement age of 60 for flight engineers; a company policy which did not allow pilots who had reached age 60 to automatically transfer to a flight engineer position; refusal to hire persons over age 35 as sheriffs and helicopter pilots; a maximum hiring age for police officers of 29; and a mandatory retirement age of 55 for sheriffs.

Mandatory Retirement For Bona Fide Executives Or High Policymakers

Under the ADEA, private employers are allowed to impose a mandatory retirement age of 65 for an employee who, for the 2-year period immediately before retirement, is employed in a bona fide executive or high policymaking position so long as the employee is entitled to an immediate non-forfeitable annual retirement benefit of at least $44,000. An employee who falls within the exemption may be offered a different position or a position of lesser status. If the employee accepts a different position or position of lesser status, the employee cannot be treated less favorably than any similarly situated employee on the basis of age.

The Older Workers Benefit Protection Act

The Older Workers Benefit Protection Act (OWBPA), which amended the ADEA, establishes specific requirements for a waiver of any right or claim under the ADEA. As explained by the U.S. Supreme Court in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), the OWBPA is “designed to protect the rights and benefits of older workers” and the “OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers.” Generally, issues involving the OWBPA arise under two circumstances.

• * The employer offers a departing employee a severance agreement which requires the employee to waive rights or claims under ADEA. The departing employee’s employment may end as the result of a voluntary resignation, early retirement, or involuntary termination. An involuntary termination may take the form of a layoff, reduction-in-force, or reorganization.
• * The employee and employer settle a charge of discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC) or a lawsuit filed in a court alleging age discrimination of any kind prohibited by the ADEA, and the settlement agreement requires the employee to waive rights or claims under the ADEA.

When an employee waives any right or claim under the ADEA, the OWBPA mandates that the waiver is “knowing and voluntary.” The OWBPA sets forth specific requirements that must be satisfied in order for a waiver of any right or claim under the ADEA to be considered “knowing and voluntarily.” Under the OWBPA, a waiver of any right or claim under the ADEA may not be considered “knowing and voluntary” unless the following factors are satisfied:

1. The waiver must be part of an agreement between the employee and the employer that is written in a manner calculated to be understood by the employee.
2. The waiver must specifically refer to rights or claims arising under the ADEA.
3. The employee does not waive any rights or claims that may arise after the waiver is executed.
4. The employee waives any rights or claims under the ADEA only in exchange for consideration in addition to anything of value to which the individual is already entitled.
5. The employee is advised in writing to consult with an attorney before signing the agreement.
6. The employee must be given at least 21 days to consider the agreement. However, if the waiver is requested in connection with an exit incentive program or other employment termination program offered to a group or class of employees, the employee must given at least 45 days to consider the agreement.
7. The agreement provides that for at least 7 days following execution of the agreement, the employee may revoke the agreement and the agreement shall not become effective or enforceable until the revocation period has expired.

If any of the requirements are not met, the waiver of any right or claim under the ADEA is unenforceable. However, when the employee and employer settle a charge of discrimination filed with the EEOC or a lawsuit alleging age discrimination, a waiver is considered “knowing and voluntary” if the first 5 factors are met and the employee is given a reasonable period of time to consider the settlement agreement.

Group Layoffs or Terminations & The OWBPA

When an employer layoffs or terminates a group of employees, the OWBPA creates additional requirements when employees are offered exit incentive programs and other employment termination programs. In its regulations enforcing the ADEA, the EEOC characterizes an “exit incentive program” as a voluntary program where a group or class of employees are offered additional consideration in exchange for voluntarily resigning and signing a waiver. The EEOC regulations characterize an “other employment termination program” as a program where a group or class of employees who were involuntarily terminated are offered additional consideration in return for signing a waiver.

When a waiver of any right or claim under the ADEA is requested in connection with an exit incentive program or other employment termination program offered to a group or class of employees, the employer, at the commencement of the 45-day period to consider the agreement, must inform the employee in writing as to the following:

• * Any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
• * The job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

Age Harassment

As discussed more extensively in our section regarding hostile work environment harassment, the ADEA and FCRA also protect employees against harassment on the basis of age in the workplace. Age harassment is a form of age discrimination. Age harassment usually takes the form of derogatory age-related remarks, insults, or jokes against the victim. Age harassment which is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create a hostile working environment violates the ADEA and FCRA.

Protection Against Retaliation

As discussed more fully in our section pertaining to retaliation, employees are protected against retaliation when they complain about age discrimination or harassment in the workplace. Under the ADEA and FCRA, employers are prohibited from taking adverse employment action against employees in retaliation for having complained about age discrimination or harassment. Prohibited retaliatory adverse employment actions include reduction in pay or hours, demotion, denial of promotion, suspension, and termination.

Employment Law Blog

We offer more information about age discrimination and harassment in our employment law blog.

Contact Us Today For A Free Initial Consultation

If you are experiencing or have experienced age discrimination in the workplace, please contact us for a free initial consultation with our Central Florida age discrimination attorneys. You will receive personalized and individual attention from our employment law attorneys. We have substantial experience litigating age discrimination cases in state and federal court. Our employee rights law firm takes age discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your age discrimination case and fight for your employee rights.