How do our laws protect older employees?

The law prohibits an employer from discriminating against an employee who is over the age of 40 because of the employee's age.

Are all employers subject to the age discrimination laws?

No, but most employers are covered. Under the federal law (known as the Age Discrimination in Employment Act), employers with twenty or more employees are covered. There is also an Indiana age discrimination law which applies to employers who have fewer than twenty employees. The state law has many exceptions and does not provide as much relief to an employee as the federal law.

What action by an employer is covered by the age discrimination laws?

Basically all employment decisions. An employer cannot fail to hire an employee, discharge an employee, pay him less money, or otherwise discriminate in the terms, conditions, and privileges of employment because of an individual's age.

Are employees over the age of 40 entitled to preferential treatment because of their age?

No. An employer is not entitled to be treated any better than any other employee just because he is over the age of 40. What age discrimination means is that the employee cannot be treated any worse because he is over the age of 40.

Does an employee over the age of 40 have a claim for age discrimination whenever he is treated unfairly by his employer?

No. The age discrimination laws do not protect employees from erroneous or unfair personnel decisions so long as the employer's reason was not motivated by the employee's age.

Can an employee be required to retire at a certain age?

In most cases the answer is no. Except for certain highly paid executives, an employer cannot set a mandatory retirement age. For employers with fewer than twenty employees, however, an employee over the age of 70 is not protected by the Indiana law.

How does an employee know if he has been discriminated against because of his age?

It is frequently difficult to know unless the employer has made comments to the employee or to some third person which shows that the employment decision was age-motivated. However, a discriminatory motive can be proved indirectly. For example, if an employee can show that the employer knew that the reason which it gave for an employment decision was false, or if the employee can show that younger employees were treated less strictly for engaging in the same type of behavior, age discrimination can be established.

What should an employee do if he wants to charge an employer with age discrimination?

The employee must file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) charging the employer with age discrimination. In Indianapolis the EEOC office is located at 101 West Ohio Street. Its telephone number is 317-226-7212.

When must an age discrimination charge be filed with the EEOC?

In Indiana the charge must be filed not later than 300 days after the act of discrimination occurred.

Is it necessary to hire a lawyer in order to file a charge of age discrimination?

No. Charges under the federal law may be filed in person, by mail, or by telephone to the nearest EEOC office. If there is not an EEOC office in your immediate area, an employee can call toll free 800-669-4000 for more information.

Although not necessary, it may be advisable to talk to a lawyer before filing a charge. He or she can give advice as to whether it is worthwhile to pursue an age discrimination claim and can guide the employee in the preparation of the age discrimination charge.

Charges against employers with fewer that 20 employees can be filed with the Indiana Commissioner of Labor who is required by law to investigate complaints of age discrimination.

What happens after an EEOC charge is filed?

The EEOC will assign an investigator to the case. The investigator will consider all evidence which the employee may wish to submit in support of his position. The investigator will also contact the employer and get its position.

What happens after the EEOC completes its investigation?

After the EEOC completes its investigation, it will decide whether it believes that age discrimination occurred. If the EEOC finds against the employer, it will attempt to work out a settlement with the employer after first consulting with the employee. If no settlement is reached, the EEOC can either sue the employer on behalf of the employee, or it will send the employee what is known as a "right to sue" letter. Once such a letter is sent, the employee has a period of ninety (90) days within which to file an age discrimination lawsuit. Such a lawsuit will normally be filed in federal court.

What happens if the EEOC decides that there was no age discrimination?

An employee is still entitled to pursue his claim by filing a lawsuit against the employer within ninety (90) days of receipt of a "right to sue" letter from the EEOC. The employee has the same right to pursue his claim in a court of law as if the EEOC had decided in his favor.

How does someone find a lawyer to represent him if it is necessary to file a lawsuit?

There are many lawyers in private practice who handle employment discrimination cases. What the lawyer may charge for taking the case is determined by agreement. Some lawyers will take cases on what is known as a "contingent fee" basis, which means that the lawyer's fee is based upon a percentage of the amount of money which is collected. If nothing is collected, no fee is owed. If an employee cannot find a lawyer to handle the case, there are governmental and non-governmental organizations who provide legal assistance to individuals who are not financially able to hire their own attorney. Lawyers are sometimes more willing to take employment discrimination cases than other lawsuits because the employer is required to pay the employee's legal fees if the employee wins the case.

What can an employee get if he wins an age discrimination lawsuit?

An employee is entitled to receive back pay and lost benefits. The federal law also provides for "double damages" to employees who have been discriminated against because of their age when the employer's violation was willful. An employee who has been discharged is entitled to be reinstated to his former job, or where reinstatement may not be practical, to recover what is known as "front pay". The employee if successful can also recover attorneys fees from the employer.

Does an employee who loses an age discrimination case have to pay the employer's legal fees?

No, unless it can be shown that the employee acted in bad faith or had no reasonable grounds for filing the lawsuit.

With whom should I talk if I need more information?

You should call the EEOC at the numbers given above or contact a lawyer who is knowledgeable about employment discrimination law.

Thanks to Robert L. McLaughlin of Wooden & McLaughlin for his assistance with this article.

Last revised: 7-2003
LSC Code: 1210505

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