The federal Age Discrimination in Employment Act ["ADEA"] makes it unlawful for an employer to fire, refuse to hire, or "otherwise discriminate" against someone because of the person's age, provided the person is at least 40. ADEA also prohibits discrimination by employment agencies and labor unions, and prohibits discrimination against those who have opposed unlawful practices or filed a charge against the offending entity. ADEA applies to employers that have at least 20 employees. It is commonly believed that the ADEA specifically prohibits an employer from inquiring about a prospective employee's age or date of birth. While ADEA does not actually make that practice unlawful, as a practical matter most employers shy away from asking such questions, because merely asking such questions may result in scrutiny of the employer's motivations. The Older Workers Benefit Protection Act of 1990 amended ADEA to specifically prohibit employers from denying benefits to older employees.
Waiver of Age Discrimination Rights
An employer often asks an employee -- either when the employee is leaving his or her employment, or as part of an effort to resolve an ADEA charge or lawsuit -- to waive his or her rights under the ADEA. For such a waiver to be valid, it must be written; be clear and understandable; must specifically reference the ADEA; may not waive future rights or claims; must be in exchange for some "consideration" (something of value); must advise the person to consult with a lawyer before signing the document; and must allow the person at least 21 days to consider the agreement and at least seven days to revoke the agreement after it is signed.
The Importance of Keeping a Journal
If you are currently employed but believe that your employer is in some manner discriminating against you based upon age, or believe that you may soon be terminated, it would be extremely helpful if you were to keep a daily journal of anything that would support your claims. Do not rely on memory. Put the date and time of each entry in the journal. And make sure to record not just events that you consider major, but also those that you may deem minor at the time that it occurs; sometimes, the relevance of a particular action may become clear only later when you may view a particular event as part of a continuum of events.
Filing a Written Charge
Victims of age discrimination must first file a written charge of discrimination. That charge may be filed with the Equal Employment Opportunity Commission ["EEOC"] and/or with a state agency that prohibits age discrimination and has authority to enforce state law in that regard. In New York, that is the New York State Division of Human Rights. Because there is a state law that prohibits age discrimination and a state agency to enforce those laws, the normal 180-day filing deadline is extended to 300 days. That is true in most other states as well.
Agreements between EEOC and the state agency will typically result in a charge of discrimination charge that has been filed only with one such agency being dual-filed with the other.
If you choose to file a charge with EEOC, get in touch with one of the EEOC's many field offices and arrange to visit the EEOC office in person. You can call 800-669-4000 to find out the location of the closest EEOC field office.
The Mechanics of Filing the Charge
Prepare for your meeting with the EEOC by gathering any documents that are relevant to your claim. It will also be very helpful to summarize, briefly, all of the facts that make up your charge of discrimination. Although a lawyer may accompany you to the EEOC, there is no requirement that an attorney be involved in the filing of an EEOC charge. Many individuals file an EEOC charge without a lawyer. The EEOC permits a charge to be filed by mail, but it is advisable to file the charge in person. Be sure before you leave to have a copy of the charge stamped by the EEOC so that you have evidence that the charge was filed and the date that it was filed. You cannot file an age discrimination lawsuit without first filing a charge with an administrative agency, such as the EEOC. When at least 60 days have passed from the time you filed the EEOC charge, up to 90 days after you receive notice that EEOC's investigation is concluded, you may file a lawsuit.