Age Discrimination

Andrew Abramson is a Philadelphia age discrimination lawyer who represents employees in age discrimination cases. In Pennsylvania, an employer, cannot terminate, refuse to hire, or otherwise discriminate against an employee in any respect because of an employee’s age. The Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA) provide protections against employment discrimination for employees who are over the age of 40.

When Congress passed the ADEA making age discrimination at the workplace illegal, it found that setting arbitrary age limits regardless of an employee’s job performance was a common practice and the law needed to promote employment of older persons based on their ability, rather than age; to prohibit arbitrary age discrimination in employment.

An employee must be at least 40 years of age under federal and Pennsylvania law to be protected. A typical age discrimination case may involve an employee who is over 40 years of age who was treated differently in the workplace than a substantially younger employee. In order to satisfy the substantially younger requirement, it is not necessary that the person being treated more favorably be less than 40 years of age. A claim may also involve two employees over 40, where for instance, an employee who is over 60 years of age is treated less favorably than another employee, who is 45.

Federal and Pennsylvania age discrimination laws recognizes that many times when employees are subjected to age discrimination there is no direct evidence (i.e. negative statements about an employee’s age such as You are too old, where are terminating your employment because we want to hire a younger employee to replace you). As a consequence, a Pennsylvania employee may use indirect evidence to support an age discrimination claim. Indirect evidence of age discrimination may be supported in a number of ways, including the use of comparators (showing younger employees who were treated differently), statistics, and evidence of similar age discrimination against other employees.

The law requires that an age discrimination plaintiff (an employee who files a case) prove by a preponderance of the evidence, that age was the “but-for” cause of the termination of employment or other adverse employment action. An employee may prove age discrimination through what the law calls, “pretext.” Under a Supreme Court case, McDonnell Douglas Corp. v. Green, which is also followed by Pennsylvania courts, there is a burden shifting test. First, the employee must demonstrate a “prima facie case” of age discrimination. This means that the employee must show: (1) the employee is forty years of age or older; (2) the employer took an adverse employment action against the employee; (3) the employee was qualified for the job in question; and (4) that the employee was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus, or that younger employees received comparatively more favorable treatment. The prima facie case standard for age discrimination case is flexible and must be evaluated in light of the particular circumstances.

Once an employee satisfies the prima facie case requirement, the burden of production shifts to the employer to identify what the law calls a, “legitimate non-discriminatory reason” for the adverse employment action (a reason other than age that the action at issue was taken). If the employer does so, the burden then shifts back to the employee to demonstrate that the employer’s reason is only a pretext (questionable or flawed and really an attempt to cover up age discrimination).

In situations where an employer layoffs employees, Courts have held that an employee alleging age discrimination in the layoff must only show that the employee was a member of the protected class (more than 40 years old) and that the employee was laid off from a job for which he was qualified, while other substantially younger employees were treated more favorably.

Older Worker’s Benefit Protection Act

Employees who are 40 years of age or more also are protected by the Older Worker’s Benefit Protection Act (OWBPA) which forbids age as being used as the basis for any employment decision. The OWBPA mandates certain requirements to be included in Severance Agreements when an employer offers an employee something of value to sign a waiver or release of age discrimination claims at the time employment is terminated.

When employers ask employees, who are 40 years of age or older to sign a Severance Agreement and waive their rights to take legal action, such as filing an age discrimination lawsuit, the OWBPA mandates that employers include certain language, including:

• an employee must be provided twenty one (21) days to decide whether to waive rights; however, if the Agreement is offered to a group of employees, the employees must instead be provided a minimum of forty-five days (45) to decide whether sign the Agreement
• an employee must also be given seven (7) days to revoke the Agreement after signing
• the waiver of claims must be understandable so that the average eligible employee can easily understand the waiver
• the waiver of claims cannot apply to any rights or claims discovered after the agreement is signed
• the employer must offer something of value beyond which cannot just include what the employer already owes the employee
• the employer must provide written notice of the right to review the Agreement with an attorney before signing the Agreement
• in situations where an Agreement is offered to a certain class/group of employees, the employer must provide written notice as to how the class/group was defined; the notice must identify job titles and ages of those who received and did not receive the offer

Waivers that fail to comply with any of the requirements are void as a matter of law. In fact, an employee who has signed an invalid waiver maintains the right to file an age discrimination lawsuit and does not have to refund the severance received from an employer for signing an invalid waiver.

Age discrimination claims can be complex and often difficult to recognize. At Abramson Employment Law, we have represented Pennsylvania employees in numerous age discrimination cases. Our law firm represents employees in age discrimination lawsuit in Philadelphia and all surrounding counties. We are ready to assist. Call us today at 267-470-4742 or contact us online to discuss your legal options.