Halunen & Associates

As the baby boomer generation moves towards retirement, age discrimination has become a bustling sector of employment law. Yet, even with new recognition in the legal world, age discrimination is becoming a widespread problem in businesses across the country.

A well-known television commercial for “Just for Men” hair color is instructive of just how widespread age discrimination is. As a man with greying hair steps onto an elevator with younger colleagues, the narrator comments “One day you find it’s not business as usual. Your hair is grey and you wonder, ‘Will people still see me as a valuable player, is my career going down?’” The narrator then exclaims that men can “stay in the game” by using Just for Men to look younger.

Treating employees differently based soley on characteristics of age, such as greying hair color, is ILLEGAL AGE DISCRIMINATION THAT DOES NOT HAVE TO BE TOLERATED. You can “stay in the game” simply by asserting your legally protected rights as an employee in the workplace. The experienced attorneys at Halunen & Associates can help protect your rights, and assist you in your pursuit of justice.

WHAT THE LAW SAYS

Federal Law, the Age Discrimination in Employment Act (ADEA), protects employees age 40 and older from discrimination based on age if they are working for an employer with 20 or more employees. It is illegal for an employer to discriminate based on age.

TYPES OF AGE DISCRIMINATION SUITS

Disparate Treatment

-The employee is discriminated against because of their age

Disparate Impact

-The employee is indirectly discriminated against (because of their age) by a company policy. This type of claim can be more difficult to determine because some policies are a necessary part of a job requirement (like being required to lift x number of lbs.).

Employers Should Not…………….

1. Advise retirement to an employee

2. Mention the attractiveness of retirement

3. Mention the need or desire for “new blood�

4. Mention age in any of the reasons for an employee’s termination

-If made by management, these kinds of comments can be considered evidence of age discrimination.
Early Retirement Programs (Golden Handshakes)

-Employers may legally institute early retirement programs which offer incentives to specific groups of employees who wish to take the opportunity to retire early (these programs are sometimes referred to as golden handshakes).-These programs are legal as long as the choice to accept or reject the early retirement offer is voluntary and the employee’s decision to reject the option does not put the employee in a worse situation than any of the other employees.-Employers are required to give employees adequate time (45 days minimum) and opportunity to learn about the pros and cons of accepting an early retirement offer (this includes consulting with a legal counsel).

-Offers of early retirement should not be accepted without the advice of legal counsel.

Mandatory Retirement

– An employer who is not under the ADEA may require an employee who has reached the age of 70 to retire. The employer must post a notice to that effect which has been approved by the Minnesota Commissioner of Labor. Employers who intend to terminate employees who are 65 years or older but not yet 70, on the ground that the employee cannot perform their job requirements, the employer must give the employee 30 days notice.

– Even though mandatory retirement at age 70 is permitted in Minnesota, it is a violation of the federal ADEA.

Exceptions to Federal and Minnesota Age Discrimination Law

1.) In some jobs, age may be a legitimate occupational qualification and, therefore, termination based on age may be legal (Examples include: pilots, police officers, or fire fighters).

2.) It is not illegal to replace employees who are earning high wages with employees who will earn low wages because they have less seniority. (However, this usually means replacing older workers with younger workers. If can be proved that the replacement is not based on wage consideration, but based on age, then it is illegal).

Rewarding Damages in Age Discrimination Cases

-Age Discrimination cases that are brought before juries are likely to receive large amounts of awarded damages.-Here’s why………………-Older workers are often employed by a company for a longer period of time and are likely to hold a senior position in the company. This means that they probably have a higher salary than younger workers and this increases the amount of damages, for past/future lost wages and benefits, juries can award.

-Older workers are less able to find new jobs that can offer a comparable position and salary. This factor increases the amount of damages for future wage loss.

-EVERYONE GROWS OLD! Of all the types of discrimination cases, age discrimination is the easiest to relate to for juries. (Not everyone can understand what it’s like to be discriminated against due to race/color/sex, but everyone will grow old some day).

Contact an attorney at Halunen & Associates today if you feel you have been discriminated against based on your age. As always, we are happy to give a free initial consultation.