We live in a culture where youth is celebrated. A quick sample of what’s on tap media-wise confirms our preference for looking younger, feeling younger, and staying younger. Unfortunately, this desire for beauty and youth can sometimes impact our ability to appreciate the value of the kind of wisdom and experience that only age can bring. People who lack the ability to appreciate the values that come with getting older may often mistakenly see age as a flaw. If that type of person is in a position of authority in the workplace, their prejudice often takes the form of age discrimination.
Age discrimination, like all forms of employment discrimination, is insidious in its effects. Perfectly able employees who have the experience and know-how to competently fill a position are rejected for a job or promotion out of hand because of their age. In some cases, older workers are harassed because of their age. In this type of hostile work environment, these workers are forced to endure a daily round of insults, offensive comments, and even physical threats. This is why age discrimination is illegal under both federal and Colorado law.
Under the Age Discrimination in Employment Act of 1967 or ADEA, and Colorado Revised Statutes § 24-34-402, age discrimination involves treating a job applicant or employee over the age of 40 less favorably because of his or her age. In addition, there are two types of age discrimination – treating employees or potential employees differently because of age (disparate treatment) and implementing facially neutral employment policies that unfairly impact employees over 40 (disparate impact).
Per the U.S. Equal Employment Opportunity Commission, or EEOC, and Colorado law, instances of age discrimination based on disparate treatment include, but are not limited to the following:
It should be noted that age discrimination can occur when both the victim and the person inflicting the discrimination are both over 40. However, it is not illegal to favor an older worker over a younger worker even when both are over 40.
It is also illegal to harass an employee because of their age. Harassment can include:
For harassment to be actionable, it must rise above the level of simple teasing, offhand comments, or isolated incidents that aren’t very serious. The behavior becomes discriminatory when it is so frequent or severe that it creates what a reasonable person would construe as a hostile work environment.
It is also illegal to limit a position to people of a certain age unless a bona fide occupational qualification, or BFOQ, exists.
A BFOQ is a quality that an employer is allowed to consider or prefer when making an employment decision, even when that preference would otherwise be discriminatory. For example, when it comes to age discrimination, it is perfectly legal for a municipality to have a facially discriminatory policy requiring all applicants for the position of police officer to be under the age of 50. Such a policy is considered a BFOQ because the physical requirements inherent in police work legitimately require people who are younger than 50.
An employment policy that applies to everyone but unfairly impacts employees over 40 is illegal unless the employer can show it has a reasonable factor other than age, or RFOA, for instituting that policy. Using our previous example, let’s say a municipality institutes a policy that requires every applicant for the position of police officer to pass a physical fitness test before being hired. It’s obvious that even though this policy applies to every applicant, it unfairly impacts applicants who are over 40. After all, the average 25-year-old is much more likely to pass the physical fitness test than the average 45-year-old. However, the municipal employer has a legitimate RFOA, in that an important factor in successful police work is physical fitness. Therefore, the policy in question is not discriminatory since it is reasonably based on this factor and not on age.
Age discrimination claims can be an uphill battle when it comes to employer liability. In disparate treatment cases, the victim must not only show that the employer’s actions were intentional, since a 2009 Supreme Court decision, they must also show by a preponderance of evidence, that age was the “but for” cause of the adverse employment action. In other words, the plaintiff must essentially prove that age was the sole reason for the discrimination.
Furthermore, an employer is responsible for the discriminatory behavior of any employee or, under certain circumstances, a non-employee like a customer or a supplier, as long as certain conditions are met. These include:
It is important to note that a person who is being subjected to age discrimination needs to utilize any system put into place by their employer to stop or prevent harassment or discrimination from occurring. A failure to do so may allow the employer to say that procedures were in place to mitigate and prevent discrimination, but the employee failed to take advantage of these procedures and stop the complained of behaviors from happening.
If you are being subjected to age discrimination in the workplace, you need to act proactively, not only to end the discrimination but also to protect your interests should a lawsuit become necessary. These actions include:
If the employer does not mitigate the effects of the discrimination, a Claim of Discrimination must be filed with either the EEOC or the Colorado Civil Rights Division (CCRD) in order to preserve your right to proceed against your employer in court. In addition, the Claim of Discrimination must be filed within very specific time frames – 300 days from the discriminatory act for the EEOC and 180 days for the CCRD. A failure to file a Claim of Discrimination within these time frames will result in a loss of the right to pursue an age discrimination claim under Title VII or Colorado law.
A victim of age discrimination has several remedies available to them that can help them to recover the damages caused by the harasser’s behavior. These include:
In addition, up to twice the amount of back pay can be awarded if the victim can prove that the employer knowingly violated the ADEA or recklessly disregarded its provisions.
Employment discrimination law is complex, and employers will often make every effort to fight discrimination charges made against them. At Marathon Law, LLC, we use our knowledge of employment discrimination law and our experience in handling employment discrimination cases to get the results that our clients deserve. Contact us for a free, confidential consultation at 303-704-1222, or via our website contact page.