Age Discrimination Laws and Information
Authored By: Elder Law Committee of State Bar of Georgia
A federal law called the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), protects workers ages 40 and older from discrimination in employment matters by employers, unions, or employment agencies. For example, the ADEA prohibits a company from firing, laying off, or demoting a worker age 40 or older, paying him or her lower wages, or reducing his or her benefits because of age.
The ADEA applies to all types of employers, including state and local governments. However, there are exceptions to the protection provided by the ADEA. First, the ADEA generally does not apply to an employer that has fewer than 20 workers. Secondly, an employer may force the retirement of a worker who, for 2 years before retirement, was an executive or a "high policymaker", who will receive at least $44,000 in annual retirement benefits. Finally, an employer may discriminate in hiring or promoting for certain positions if an age limit is necessary because a person=s ability to perform the job will decline after he or she reaches the age limit. For example, a bus company or an airline may establish an age limit as one of the requirements for a job as a bus operator or airline pilot.
You may be a victim of age discrimination if you can show that you were treated differently from other similarly situated employees because of your age. If you wish to file an age discrimination complaint, the ADEA requires that you file a written charge of discrimination ("charge") with the Equal Employment Opportunity Commission (the "EEOC"). You must file a complaint with the EEOC within 180 days after the discriminatory act took place. If there has been a series of discriminatory acts, you should file your complaint with the EEOC as soon as you suspect that you have been a victim of age discrimination.
The EEOC will investigate the charge and attempt to eliminate the discrimination by informal conciliation. The employer may argue that there was another reason besides your age, why you were treated differently. They may also argue that age is a bona fide occupational qualification, as mentioned above in the case of an airline pilot. If, after investigating, the EEOC confirms your case, they will issue you a right to sue letter. You must pursue your case in court within 90 days after issuance of the right to sue letter. The EEOC may ask you if you want to participate in mediation of your dispute. Mediation is a voluntary process where you would meet a representative of your employer and a neutral third party to attempt to resolve your case without going to court. Because of the limit limits involved, if you want to pursue a case in court, you should contact a lawyer or a legal services program immediately.
Georgia has two laws that are aimed at age discrimination. Although both laws are similar to the ADEA, neither one is as broad as the ADEA.
The first law applies only to "public" employers in Georgia, like state agencies and local governments. The second law applies to all employers in Georgia and it protects workers between ages 40 and 70 from age discrimination by employers in employment matters. Violation of the second law is a misdemeanor and a convicted employer has to pay a fine, but a worker cannot sue his or her employer based on the criminal law.
PROVING AGE DISCRIMINATION
In order to win an age discrimination case, you must be able to prove age discrimination. Following are some guidelines for obtaining proof:
1.Written Statements. The employer's policies may suggest that the employer favors younger workers and discriminates on the basis of age. Written statements are the best proof of age discrimination. For example, personnel pamphlets, notices, and job descriptions may imply or directly state that the employer prefers younger workers.
2. Verbal Statements. Age discrimination may be proved by documenting verbal statements made by management concerning unwritten policies. For example, if your supervisor makes a statement about the employer's preference for younger workers in your presence, write the statement down, date it and sign it. If another person heard the supervisor's statement, ask the other person to sign your version of the statement or ask the person to write his or her own version of the statement.
3. Other Information. If another person was hired or promoted instead of you, find out as much as you can about the situation. For example, find out the other person's seniority and experience. Also find out if the employer has hired or promoted any other workers your age to that particular job.
There are two federal laws that are aimed at disability discrimination -- the Rehabilitation Act of 1973 (the "1973 Act") and the Americans with Disabilities Act of 1990 (the "ADA").
THE 1973 ACT
The 1973 Act protects disabled people from discrimination in employment and other matters by employers and agencies that receive federal funds. For example, an employer receiving federal funds cannot refuse to hire a qualified disabled worker, and a nursing home participating in the Medicaid program cannot discharge a disabled resident because of his or her disability. The Act defines a disabled person as one who has, or is regarded as having, a physical or mental impairment that substantially limits one or more major life activities, like caring for himself or herself, walking, seeing, speaking or working.
The ADA protects "qualified individuals with disabilities" from discrimination in employment, public services, and public accommodations. The definition of an "individual with a disability" is similar to the definition of a handicapped person under the 1973 Act (discussed above).
Title I of the ADA protects workers with disabilities from discrimination in employment matters by employers, unions or employment agencies. For example, the ADA prohibits an employer from firing, laying off, or demoting a worker with a disability or reducing his or her benefits because of his or her disability.
Title I of the ADA applies to all types of employers, including state and local governments, but not the federal government. Title I generally does not apply to an employer that has fewer than 15 workers.
A worker with a disability must also be "qualified", which means that he or she can perform the essential functions of the job with or without "reasonable accommodation." The employer is required to make reasonable accommodation to the mental or physical limitations of the worker, unless it would be too much of a burden to do so.
Title II of the ADA protects people with disabilities from discrimination in public services, programs or activities. Title II deals primarily with transportation services provided to the general public, including bus, railways, taxis, and limousine services. For example, new buses must have lifts, ramps, and wheelchair spaces, new public transportation facilities must be usable by people with disabilities, and commuter rail services must have at least one passenger car per train that is usable by people with disabilities.
Title III of the ADA protects people with disabilities from discrimination in places of public accommodation. The term "places of public accommodation" includes hotels, restaurants, theaters, sports events, stores, offices, parks, health spas, zoos, and schools. The term does not include private clubs and religious organizations, however. Examples of discrimination that Title III prohibits are the use of unnecessary eligibility criteria, the failure to make reasonable modifications in policies and procedures, the failure to see that helpful services are available, and the failure to remove structural barriers.
If you suspect that you have been disciminated against under the ADA, you should contact the Department of Justice to file a complaint. You may contact the Department of Justice by calling the ADA information line at 800 514-0301.
In general, Georgia law protects disabled workers from discrimination in employment matters by employers, unions, or employment agencies. For example, the law prohibits an employer from firing, laying off, or demoting a disabled worker, paying him or her lower wages, or reducing his or her benefits because of his or her disability. However, an employer may:
1. Refuse to hire a person whose disability restricts his or her ability to do a job;
2. Ask about a person's disability in a job interview or on an employment application; and
3. Rely on the opinion of a doctor, psychologist, or other professional to make an employment decision about a disabled person.
A disabled person who believes that he or she has been the victim of discrimination may file suit in any court having jurisdiction. The handicapped person must file suit within 180 days after the alleged discriminatory act took place. If you believe that you have been the victim of discrimination you should contact an attorney immediately.
June 30, 2002
Prepared by Ellie Crosby, Georgia Senior Legal Hotline