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Saturday, November 14, 2015

Employers Cannot Deny Training and Promotions to Older Workers


Older workers may face many barriers in terms of their employers’ not treating them equally to younger counterparts. Discriminatory acts may cause the worker to fail, or to work poorly, resulting in negative performance evaluations after years of receiving good evaluations. This is true in all types of employment, in public and private sectors, from high level corporate positions to office workers to blue collar positions. An employer may create an environment that is so hostile that an older worker, who may only be a couple of years away from retirement,  might choose to quit, rather than endure a couple more years of harassment by the bosses. If the worker does quit, the employer has succeeded in getting the employee to voluntarily terminate his/her employment, even though the employer’s harassment based on age is against the law.

If an employer makes statements such as, “ We need some fresh faces, ” it may be a euphemism for,  “We want younger faces.”  Experienced men and women, who have been long-term employees, do not envision that after they have spent 5 or 10 or  20 years working for company, that the employer will start giving them the cold shoulder - at best - if the employer desires a younger workforce.

Employers who are afraid of being sued if they outright fire older workers, may make their job experience so unpleasant, that the older workers may just say, “ I do not need this. I was getting ready to retire in a few years anyway. I quit.” However, an employer may not circumvent the law prohibiting discrimination based on age, by continuing to retain the older employee while denying the older employee the opportunities to succeed on a level with his/her younger colleagues or co-workers. 

The discrimination by way of denying the older worker the opportunity to succeed, may be through the use of  “negatives”, i.e., by shutting the older employee out of meetings; not copying the older employee on business memos regarding changes in plans, directives, or business models; the withholding of  information; not offering training; the refusal to reimburse the older worker for employment-related travel expenses. 

In this post-millennium age, some employers still resort to affirmative blatant hostile acts to attempt to motivate the older worker to quit, i.e., by yelling at the older worker at meetings, criticizing the older worker’s looks, making jokes about the older worker’s  “forgetfulness” and other age bias comments, humiliating the worker in front of others. 

Both denying the older worker the opportunity to succeed through the use of  “negatives”, i.e., not offering the older employee the same opportunities to succeed on a level as is offered to his/her younger colleagues or co-workers, and committing blatant acts of age bias, such as speaking ageist humiliating jokes, are acts of unlawful discrimination.

One in five Americans is projected to be 65 years old and over by 2030, according to the United States Census Bureau. Persons are living longer and retirement funds have to last longer than they did a century ago. The problem of age discrimination in the workplace is unlikely to go away as long as employers can get away with it without legal penalties.

Not all laws that prohibit age discrimination have equal remedies to counter it.

For instance, although under federal and state law, there are several categories of damages available to employees who successfully sue their employers for age discrimination, the damages vary among the federal and state statutes and among the state statutes themselves. By way of example, under both the Federal Age Discrimination in Employment Act (ADEA)  and the New Jersey Law Against Discrimination, a successful age discrimination Plaintiff may be awarded both back pay, which is the amount of money up to the time of trial that the Plaintiff lost as a result of the unlawful discrimination,  and also may be awarded front pay, which is the money that the successful Plaintiff will continue to lose from the time of trial into the future. 

However, under the New Jersey Law Against Discrimination, the Plaintiff may recover money for suffering emotional distress damages caused by the employer’s acts of discrimination, while the federal statute, the ADEA does not allow a successful Plaintiff to recover for suffering emotional distress damages. 

Also, in especially egregious cases with certain sets of facts, under the New Jersey Law Against Discrimination, a Plaintiff may be awarded Punitive Damages. Punitive Damages spring from a public policy consideration. They are designed as a punitive measure against especially egregious employers to deter them from continuing to engage in such discriminatory acts in the future. Under the federal ADEA, Punitive Damages are not available to successful age discrimination Plaintiffs. 

Every situation is fact specific, and if you are a person who believes you may be the target of the employer’s illegal age discrimination, or if you were terminated and believe age may have been a factor, please contact Hope A. Lang, Attorney at Law, today for a free consultation.

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