The Bureau of Labor Statistics estimates that the number of people aged 75 and older in the labor force will nearly double by 2030, while the labor force participation rate for people aged 16 and older will decline. While age discrimination in employment has always been a problem, statistical trends suggest that it may become a more widespread problem in the coming years. As such, both employees and employers should be aware of what age discrimination is and how the law handles age discrimination claims. Employees who believe they have been discriminated against because of their age and employers who are facing allegations of age discrimination should contact a Richmond age discrimination attorney for assistance.
Sources of Law
Age discrimination in employment in Virginia is prohibited under both federal and commonwealth law, although herein we focus on federal law.
Virginia Human Rights Act
The Virginia Human Rights Act covers all forms of employment discrimination, including age discrimination. It applies to individuals who are aged 40 and over. Generally, the Act makes it unlawful for employers to take any of the following actions on the basis of or because of an individual’s age (or other protected characteristic):
- Fail or refuse to hire, discharge, or otherwise discriminate against any individual
- Limit, segregate, or classify employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect an individual’s status as an employee
While the language of the Act is broad, it is fairly limited in scope, as it applies only to employers with more than five but fewer than 20 employees for age discrimination claims.
Age Discrimination in Employment Act
The federal law concerning age discrimination is the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA applies to individuals who are aged 40 years and over and to employers with at least 20 employees, labor organizations with at least 25 members, employment agencies, and federal, state, and local governments. It uses similar language to the Virginia Human Rights Act, making it unlawful for employers to take any of the following actions:
- Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s age;
- Limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual’s age; or
- Reduce the wage rate of any employee in order to comply with this chapter.
The ADEA also prohibits employers from mandating that their employees retire at a certain age.
For more information about the precise contours of the ADEA, please contact a Richmond age discrimination attorney.
What Constitutes Age Discrimination
The types of activities that constitute age discrimination are similar to those for race and sex discrimination and retaliation. Generally, any “adverse employment action” — if it can be shown to be based on the employee’s age — can be considered age discrimination. This can include:
- Refusal to hire
- Failure to promote
- Reassignment to less desirable work duties
- Unwarranted negative performance reviews
Age discrimination may also manifest in more subtle ways through hostile work environment-type behaviors. This could include insulting an employee, making jokes about an employee’s age, isolating an employee from coworkers, or calling attention to the person’s age. If such behavior causes the employee to feel that he or she has no other option than to quit, it might constitute age discrimination.
Types of Age Discrimination Claims
Claims of age discrimination generally proceed on theories of either wrongful termination or a hostile work environment.
To make out a claim for wrongful termination due to age discrimination, the plaintiff must show that his or her age was the “but for” cause of the termination — i.e., the termination would not have occurred but for the plaintiff’s age. They generally may do so by proving four elements:
- The employee was at least 40 years of age
- The employee was qualified for the work and met the employee’s performance expectations
- The employee was terminated despite the adequacy of his or her work
- The position was filled by employees younger than the plaintiff
Once the plaintiff has made an initial showing of those four elements, the burden then shifts to the defendant (i.e., the employer) to rebut them. Two of the most common defenses in this context are the “reasonable factor other than age” (RFOA) and the “bona fide occupational qualification” (BFOQ) defenses.
Hostile Work Environment
Hostile work environment claims differ somewhat from wrongful termination claims in that the plaintiff is not alleging that his or her termination was based on age but that the employer created such an unwelcome environment that the employee felt that he or she had no choice but to quit. Such claims generally require the plaintiff to prove the following elements:
- The employee was subjected to age-related offensive conduct
- The conduct was unwelcome
- The conduct was severe and pervasive enough to alter the conditions of employment
- The employee perceived the work environment to be hostile
- A reasonable employee in the employee’s circumstances would consider the environment to be abusive or hostile.
When determining whether a working environment was hostile, courts consider the frequency and severity of the conduct, whether the conduct was physically threatening or humiliating, and whether it unreasonably interfered with the employee’s work.
Speak With a Richmond Age Discrimination Attorney for More Information on Pursuing or Defending an Age Discrimination claim
Age discrimination claims for plaintiffs can be difficult to prove, as there is often little or no direct evidence of discrimination. For defendants, allegations of age discrimination can result in significant reputational harm and potential monetary damages. For more information about pursuing or defending an age discrimination claim, please contact a Richmond age discrimination attorney at Pierce / McCoy by calling 757-304-6655 or using our online contact form.