Age discrimination claims are among the most prevalent in the workforce. Yet the amount of money awarded to plaintiffs in these claims is, on the whole, less than one can expect for those involving religious or gender discrimination cases.
The effect as noted by age discrimination lawyers and elder advocacy experts is that not only are individuals deprived of justice, but these claims fail to serve as the deterrent the way lawmakers intended.
What Makes Workplace Age Discrimination Different?
A few different factors at play here:
- Prevalence. Age discrimination is on the rise as the baby boom generation – the largest living (through at least this year) in American history – is aging. Not only that, but they are living and working longer.
- Higher Proof Burden. Thanks to a fairly recent U.S. Supreme Court case, those pursuing age discrimination claims must prove that it was the primary or motivating reason for the adverse employment action, compared to those proving other types of civil rights discrimination at work, where it must only be established as one of the factors. A bipartisan Congressional bill has been introduced to address this, but its chances of passing are unclear.
- Disparity in Damages. Title VII of the Civil Rights Act of 1964 affords a winning plaintiff a whole smorgasbord of damage options, including monetary, compensatory (for emotional distress, loss of life enjoyment, etc.) and punitive damages for the most egregious wrongs. But this is not the claim under which most age discrimination claims are filed, the Age Discrimination in Employment Act of 1967 (ADEA). This is derived from the U.S. Fair Labor Standards Act, allowing individuals to recover only monetary losses (sometimes doubled if the discrimination is proven “willful.”
- Attorney Fees. Unlike Title VII cases, ADEA case attorneys are not guaranteed attorneys’ fees if they win (paid by the defendant). Employment discrimination lawyers do work on a contingency fee basis, meaning we aren’t paid unless you win. But that payment may be derived from a portion of your damage awards if it’s not paid for by the defendant.
All these things combined mean that its harder for individual workers trying to challenge discriminatory action in the workforce. Beyond that, though, it weakens the core effectiveness of the law, which was always intended to deter rather than react. If there is no significant payout and defendants aren’t worried about paying attorneys’ fees or any other significant penalties, there is little incentive for them to alter behavior.
Experienced age discrimination lawyers know this means cases need to be weighed carefully before we proceed – not only because your attorney is paid on a contingency fee basis, but also for the client’s sake. Although there are times when simply filing a claim produces favorable results, we must carefully consider the strength of the claim versus the potential cost of protracted litigation.
But this phenomenon of less damages paid in these cases means it’s harder on the whole to tackle this kind of discriminatory action against older employees in the workforce. Some have even gone so far as to call the problem “epidemic.”
Why Are There Differences in the Law?
The crux of it is that the ADEA doesn’t treat age discrimination as if it’s a serious civil rights violation. Rather, it’s approached with the same seriousness as a company that failed to pay a worker’s vacation benefits.
So even if an older employee is able to establish that they were victims of demoralizing and egregious discrimination on the basis of their age, they may be entitled to nothing at all if they can’t show they suffered any monetary loss. So for instance, a demotion clearly made on the basis of age won’t entitle a worker to anything if that demotion didn’t also come with a pay cut.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
The Damage Of Lesser Damages In The Age Discrimination In Employment Act, June 2019, Patricia Barnes, Forbes.com