Can an Employer Lay Older Workers Off for Budget Reasons?
The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII. An employee is protected from discrimination based on age if he or she is over 40. The ADEA contains explicit guidelines for benefit, pension and retirement plans.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in broad areas of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., prohibits discrimination in employment on the basis of race, sex, national origin and religion. It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII. Sex includes pregnancy, childbirth or related medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.
It is possible for an employee to file a discrimination complaint with the EEOC. Anyone who feels that he or she has suffered workplace discrimination because of his or her race, age, physical disability, religion, sex, or national origin is eligible to file a complaint with the EEOC. Complaints or charges are generally filed at an EEOC office by the aggrieved party or by his or her designated agent. All charges must be filed in writing, preferably but not necessarily on the appropriate EEOC form, within 180 days of the occurrence of the act that is the reason the complaint is being filed. Complaints may be filed at any one of 50 district, area, local, and field EEOC offices throughout the United States.
After a complaint is filed, the EEOC then undertakes an investigation of the charge. If the investigation shows reasonable cause to believe that discrimination occurred, the Commission launches conciliation efforts. The reaching of an agreement between the two parties signals closure of the case. If such an agreement cannot be reached, the EEOC has the option of filing suit in court or the aggrieved party may file suit on his or her own. If no violation of Title VII is found, the EEOC removes itself from the case, though the party charging discrimination is still free to file suit in court within a specified time. A person may file a complaint pro se (without an attorney).
The elements of proof will vary depending on the exact factual circumstances. Generally, there are two types of proof of discrimination. The first is direct evidence of the employer’s discriminatory intent. This type of evidence is very rare, but usually takes the form of oral statements that the prospective employee is "too old" or "there is too much gray hair in this company." Once the prospective employee has shown direct evidence of discrimination, the burden of proof shifts to the employer to prove that it would have taken the adverse action even without the discriminatory intent. In most cases, however, the prospective employee does not have direct evidence and must rely on indirect, or circumstantial, evidence. This typically involves proof that a pattern of discrimination exists through the use of statistical analysis, or providing circumstantial evidence that discrimination occurred. The bar against discrimination in the workplace applies to recruitment, advertising and job application processes, hiring, upgrading, promotion, award of tenure, discharge, demotion, transfer, layoff, rehiring, compensation, leave, and various benefits.