Age discrimination is a “hot” topic right now due to a recent Supreme Court case, which some members of Congress are trying to combat with proposed legislation. Neither the case or the proposed legislation changes some general points you should consider.
So what can you do if you’ve experienced age discrimination? One of the first responses to that question is, what type of age discrimination did you experience? That will affect which federal law applies to your case and importantly, which agency you should file your complaint with. For example, you may be protected by the Age Discrimination Act (“ADA”), which applies to person of all ages. However the ADA does not apply to employment situations. Age discrimination related to your employment may be protected by the Age Discrimination in Employment Act (“ADEA”) and only applies to people aged 40 and over. The Office of Civil Rights handles ADA complaints, while the Equal Opportunity Employment Commission handles ADEA complaint.
Be mindful that before an employee can sue his or her employer in court, after filing a complaint with the appropriate federal agency, you must wait for the agency to issue a “right to sue letter,” which will entitle you to sue, within a specified period of time, an employer in court. You can request a right to sue letter at anytime.
In court, if an employee has experienced anything less than age discrimination related to hiring and firing, courts have frequently found that he must prove that the discrimination she experienced was a “materially adverse employment action.” What is materially adverse is tricky. For example, merely being transferred to another department where there is a minor discrepancy in working conditions, work hours, and previous pay may not be enough. The facts of your case are vital.
In addition, after an employee complains formally or informally to their employer about feeling discriminated upon because of age, employees often experience retaliation. Employer retaliation comes in many forms: verbal abuse; threatening emails; exclusion; unjustified demotions; groundless accusations that affect an employees reputation; and unsubstantiated suspensions without pay and other disciplinary actions, amongst other things. Sometimes employer retaliation becomes so severe that an employee experiences what is known as “constructive discharge” from their job.
Simply, constructive discharge is an environment that would compel any reasonable person to resign or consider resigning. Proving constructive discharge is not so simple, however, and requires being able to obtain essential information related to the hostile climate in which you were working in. In today’s technological age, that information involves more than witness testimony. A good lawyer should understand electronic discovery, how to get the emails, text messages, and other electronically transmitted information that can more forcefully argue your case.
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