Many employers are aware that the federal Age Discrimination in Employment Act (“ADEA”) prohibits discrimination on the basis of age against employees age 40 or over. But can employers be sued for age discrimination by employees under age 40? What about claims by younger workers alleging older workers were treated more favorably? The answers are not always clear.
Claims that Older Workers Were Treated More Favorably
In 2004, the United States Supreme Court decided General Dynamics Land Systems, Inc. v. Cline. In that case, the employer renegotiated its union contract so that it provided full health benefits to retirees who were over age 50 as of a particular date. A group of employees aged 40 to 49 filed suit, claiming that the ADEA protected them from this kind of discrimination. They were over age 40, so they were members of the protected class under the statute, and the discrimination was undeniably on the basis of age. The Supreme Court considered that the ADEA had been passed to combat discrimination against older employees and held that the company’s actions were permissible. Accordingly, it is well-settled under federal law that so-called “reverse discrimination” claims based on age will fail.
But what about state law? A Florida teenager recently brought an action against a retailer that refused to hire him because he was under 18. According to the retailer, the job required use of a trash compactor and a box cutter. The retailer had previously been fined by the Department of Labor for allowing minors to use a trash compactor. Under federal law, the case would have been dismissed both because the complainant is under age 40 and because he is claiming discrimination on the basis of youth. But, the Florida Commission on Human Relations is investigating the teenager’s claim and the validity of the retailer’s justification for refusing to hire him.
Cases like this are rare, but are not new. In 1999, the New Jersey Supreme Court allowed a similar case to proceed. In that case, a 25-year-old was hired as a bank vice president. When the bank chairman realized his age, he told the employee not to tell anyone. He was then told he might be fired or reassigned. He refused reassignment and was fired only a few months after hire.
While employers may successfully avoid liability under federal law by favoring older employees, this may not immunize the employer from liability under state law. This is especially important to keep in mind when making decisions about employee layoffs. The best approach is to be able to document legitimate, non-discriminatory justifications behind each decision.
Claims by Employees Under 40 for Being Too Old – Is 25 the New 40?
What about claims by employees under age 40 who say they have suffered discrimination for being too old? These cases are not permitted under federal law, but some state laws set lower cutoffs. For example, the District of Columbia, New Jersey, New York, and Oregon allow age claims by anyone over age 18. Some states, such as Connecticut and Maine, do not have a minimum age at all.
While state laws may permit these claims, in most cases, employees will have a difficult time proving an employer viewed an employer under age 40 as “too old.” The most likely areas for successful claims are those in which the employer is seeking a very youthful appearance. For example, a trendy bar or clothing store might refuse to hire employees over 30 in order to project a certain image. This would likely run afoul of state laws that set a threshold of 18 or set no threshold.
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In most cases, employers can avoid liability by making decisions without regard to age. If there is a special situation, such as a law prohibiting minors from using dangerous equipment, employers should consider whether this means the applicant should not be hired at all or whether the job responsibilities can be adjusted. For example, if the employee would only need to use dangerous equipment on rare occasions, perhaps an older employee could perform the work at issue when needed. While there is no duty to “reasonably accommodate” age as there is for disability and religion, if the problematic tasks are only peripheral to the job, a court or administrative agency might ask whether the employer’s reason for not hiring the applicant is pretext for discrimination.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
