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human / civil rights
During the mid 90s, age discrimination decreased but, steadily increased with the turn of the century. According to the Equal Employment Opportunity Commission, the U.S. workforce’s demographics are changing. The commission says that more than 50 percent of the workforce turned 40 years and older in 2000.
“The older the workforce gets, the more age discrimination claims come,” said EEOC spokesperson Joe Bontke. “16,585 out of 86,000 cases received in Texas last year were regarding some form of age discrimination.”
According to Bontke, those numbers represent a 20 percent increase from 2004.
“We [the United States] are continuing to outsource and restructure typical manufacturing jobs and with large companies continuing these practices, age discrimination cases continue to go up,” said Tate Barkley, an attorney specializing in age discrimination. "Employers wanting to attract younger clientele are looking for employees to match the market.”
Most age discrimination cases filed with the EEOC consist of more than one kind of discrimination.
“You can file in person, or you can file via the Internet or an 800 numbers or snail mail, but the majority of the people like to come in a visit with an investigator,” said Bontke.
Cases are then categorized by A, B and C. “A” being the most urgent and quickly taken under investigation, “B” will be taken under investigation but more information is required and “C” is considered to be quickly dismissed. People, who do not file with the EEOC and go directly to an attorney, generally go through the same guidelines.
“The fact that they have retained council does not mean that they do not have to fulfill statutory requirements,”said Barkley. “We file a complaint on behalf of our clients with the EEOC and we go through the EEOC process.”
The EEOC then notifies the company that a charge of discrimination has been filed against them, and then the EEOC makes the decision to investigate the charge immediately or to proceed with a fact-finding process. During the fact-finding process, the EEOC asks both parties for supporting documentation about the alleged discrimination.
In the meantime, the EEOC attempts to resolve the problem between the employee and the employer through mediation. The EEOC reports that about 80 percent of their cases are resolved by mediation. Trained mediators assigned by the state try to settle claims but, if an agreement is not found, the EEOC refers the client to an attorney.
“We may close the case and say ‘this is a terrible thing that was happened to you,’” said Bontke. “We’re then going to give you a right-to-sue document, which means you’ve been through the administrative process with the EEOC, and now you can go to federal court and file a charge against your company.”
Once a case reaches court, the chances for resolution are less than ideal.
“It’s been my experience of a tried age discrimination case runs about 50/50,” said Barkley.
Critics say such percentages seem low for a case that has been already cleared by the EEOC, but Barkley says that the numbers are not favoring plaintiffs more because of Texas labor law and that it is just hard to prove age discrimination cases.
Texas is considered to be an “At-Will” state, meaning that Texas labor law follows the Employment At-Will Doctrine. The Employment At-Will Doctrine says that employment is presumed to be voluntary and indefinite for both employees and employers.
As an “At-Will” employee under the doctrine, the employee may quit their job whenever and for whatever reason they want, usually without consequence. In turn, “At-Will” employers may terminate the employee whenever and for whatever reason they want, usually without consequence.
Either party may end the relationship without prior notice, but neither party may breach contracts. Employers cannot violate state or federal laws, and generally cannot rightfully fire employees who refuse to do something that is contrary to public policy such as breaking the law.
One of the biggest exceptions to the federal age discrimination law is made when age is an essential part of a particular job. Known as Bona Fide Occupational Qualification, this exception allows employers to set age limits on a particular job if they can prove that the limit is necessary because a worker's ability to perform the particular job adequately does, in fact, diminish after the age limit is reached. Firms are claiming the same job can be equally achieved by a person that is willing to do it for less money.
“What I do to overcome that is compare experiences and qualifications,” said Barkley.
Performance reviews are the key in successful age discrimination cases. If an older person is known to have a good track record within in the company and the pay offered to a younger employee is not significantly lower, attorneys know they have a good age discrimination case.
“Age discrimination cases are very hard to prove,” said Barkley. “Many times firms will never come out and say 'you are just too old for your job.’”
Barkley adds though, that if an employer makes comments like “your position is being outsourced,” or “we are restructuring the workforce” such language could be used as grounds for age discrimination.
Barkley said she expects age discrimination cases to continue to rise.
“The chief reason for eliminating older workers is the cost of healthcare,” said Barkley.
In March, 2005, the Supreme Court approved by a 5-3 margin that older workers can sue over pay or benefit plans that favor younger employees even if no evidence of deliberate age discrimination exists.
© Copyright World Internet News 2006-07
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