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Age Discrimination Increasingly Prevalent in New York, Beyond

An executive order recently signed by President Barack Obama bars the federal government from accepting bids from contractors found liable for age discrimination. The order also bars companies with federal contracts from binding workers to arbitration agreements in age discrimination claims.

The idea, Obama later said, is not to penalize companies so much as emphasize the opportunity to follow good workplace practices and legal compliance.

While the order won’t affect every company, it’s worth noting 1 in 5 American workers are employed at a firm with a federal government contract. What’s more, a 2010 Government Accountability Office report indicated contractors responsible for two-thirds of the biggest labor law violations went on to score federal contracts.This order serves to press companies to more carefully craft internal policies and also heightens awareness of the growing problem of age discrimination in the workplace.

Older workers should know, firstly, that the Age Discrimination in Employment Act of 1967 (commonly referred to as ADEA) bars employers (with at least 20 workers), employment agencies, government branches and labor organizations with at least 25 members of discriminating against workers over the age of 40 on the basis of age.

Discrimination means any type of adverse action that relates to hiring, firing, promotion, benefits, layoffs, compensation, training and job assignment decisions. Although age discrimination can manifest itself in ways not always obvious, it’s important to note that under ADEA, companies cannot:

  • Refer to age or assert that a certain age is preferred in recruiting material or job advertisements;
  • Set age limits for certain training programs;
  • Force you to retire at a certain age (with a few, narrow exceptions);
  • Enact policies and practices that have a disparate impact on older workers, such as refusing to hire workers with more than a certain amount of experience.

You also can’t be refused participation in your employer’s benefit plan package on the basis of age.

New York state law – specifically, Executive Law Article 15, Human Rights Law – offers an even broader range of protections. Where federal law is applicable only to companies with 20 people or more, state law applies these same standards to companies with four or more employees.

Of course, companies have many ways of attempting to sidestep liability in these cases. Off-color remarks tending to indicate an age bias aren’t always in writing. Companies might decline certain candidates as being “over-qualified,” when what they really mean is “too old.”

Still, plenty of age discrimination cases have been successful. Take for example the recent $1.5 million federal court victory of a 61-year-old manager against technology giant IBM. In Castelluccio v. IBM, the manager started at the company in 1968. In 2007, he was told he was being removed from his position and placed “on the bench,” which meant he was an employee with pay, but lacked any real work assignment. When company officials said they couldn’t find another job for him, he was terminated.

Although a purportedly “objective” internal investigation found his claim of age discrimination to be “baseless,” the report was later dubbed “a sham,” as it failed to include facts tending to favor the worker. Its conclusions were not permitted as evidence for consideration by the jury. The worker sued – and later won – on the grounds the company had violated ADEA and New York State Human Rights Law.

That ruling was in February 2014. In August 2014, second IBM worker was awarded $3.71 million for wrongful termination based on age.

But such practices go beyond the technology industry.

A 2012 AARP study found that 77 percent of unemployed respondents between the ages of 45 and 54 indicated they had faced age discrimination in the workplace. Of those in the same age group employed full-time, 58 percent answered the same.

It’s worth noting too, according to the Equal Employment Opportunity Commission, total monetary awards for age discrimination lawsuits have reached an all-time high, totaling $97.9 million last year – the highest its been since 1997.

The Law Offices of Ira S. Newman provides employment discrimination representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.

Additional Resources:
Age Discrimination Fact Sheet, April 2014, AARP
More Blog Entries:
Older Job Seekers Feeling Sting of Age Discrimination in New York, Oct. 7, 2011, New York City Age Discrimination Lawyer Blog