The COVID-19 pandemic continues to rage in the U.S. Despite this, the country continues to reopen even though there is a quickly increasing number of infections and deaths. Many people in the U.S. also continue to resist the calls to wear masks and to practice social distancing. Because of the current environment, some employers are worried about having the virus spread among their workers. This fear makes it predictable that some employers want to identify high-risk employees to try to protect them. However, even if an employer has good intentions, the employer must be careful to ensure that the actions that it takes do not amount to illegal age discrimination against older workers. If you believe that your employer has illegally discriminated against you because of your age, talk to the employment and discrimination lawyers at Swartz Swidler to learn about your rights.
The heightened risks faced by older workers
According to the Centers for Disease Control and Prevention, several groups have been identified as having greater risks for suffering severe complications from coronavirus infections. Older adults are included as a high-risk group. The CDC reports that people experience higher risks of suffering serious illnesses from coronavirus as their ages increase. People over the age of 65 account for 80% of all of the deaths from COVID-19.
Because of these types of statistics, some employers might make decisions in their companies that single out older workers. Employers might engage in discriminatory conduct out of a desire to protect older workers or simply because they view them as more expensive and want to use the pandemic as a reason to terminate them.
Examples of age discrimination in the face of COVID-19
Even if they mean well, employers might make several changes in their business operations in response to the pandemic that might have an unfair impact on older workers. Some examples of the types of actions that might be discriminatory include the following:
- Furloughing older workers while allowing younger employees to continue working
- Moving elderly workers to the back office and out of the front office to keep them from interacting with the public while changing their job duties
- Only requiring older workers to wear masks or shields
- Terminating older workers to avoid paying higher insurance costs or paid time off
Even when an employer is motivated by a wish to protect older workers, this type of behavior is unfair. It might also be considered to be unlawful under the Age Discrimination in Employment Act.
What is the ADEA?
The ADEA is an anti-discrimination law that was passed in 1967. It prohibits employers from discriminating against workers based on their ages if they are 40 or older. Age discrimination against workers who are 40 or older is prohibited in all aspects of employment, including recruitment, hiring, bonuses, training opportunities, compensation, benefits, and job duties. Policies that apply to all employees may be unlawfully discriminatory if they desperately impact workers who are ages 40 or older when they are not based on reasonable factors besides the employees’ ages.
The ADEA only applies to private employers that have at least 20 employees. It also applies to local, state, and federal governmental employers. New Jersey also has an age discrimination law that covers more employers than the federal ADEA.
The New Jersey Law Against Discrimination protects workers against age discrimination even when they are younger than age 40. However, employers can refuse to hire workers who are younger than age 18 or older than age 70 under the NJLAD. The NJLAD also applies to companies of any size.
While the ADEA prohibits age discrimination against older workers, it does not prohibit discrimination against younger workers in favor of older workers. If you exercise your rights under the ADEA by filing a complaint about age discrimination, you are also protected against retaliation. If your employer retaliates against you for reporting discrimination or for participating in an investigation, you can file a separate retaliation claim.
Exceptions to the protections of the ADEA
There are a few exceptions to the protections afforded to older workers by the ADEA. Employers are allowed to treat older workers differently than younger employees when the workers’ ages are a bona fide qualification or the position and the restriction is necessary to carry out the job’s requirements. Employers might also force workers who reach age 65 to retire when they are executives. However, they can only do so if the executives will receive retirement benefits providing some level of compensation.
How the ADEA is enforced
If your employer has illegally discriminated against you based on your age, you can file a discrimination charge with the Equal Employment Opportunity Commission. Typically, your charge must be filed with the EEOC within 180 days of when the discrimination occurred. If you are a federal employee, you will only have 45 days to file a charge with the EEO counselor at your agency.
If you succeed with your discrimination charge, you might be able to recover the following compensation:
- Lost wages
- Liquidated damages in the amount of your lost wages if your employer’s discrimination was intentional
- Court costs and attorneys’ fees
- Reinstatement or front pay
- Other equitable relief
The ADEA does not include the right to ask for reasonable accommodations based on your age. However, if you have a medical condition that requires you to ask for an accommodation, you might do so under the Americans with Disabilities Act for a qualifying disability. An accommodation that you might receive will be based on your disability rather than your age, however.
Get help from Swartz Swidler
People of all ages are dealing with many hardships because of the novel coronavirus pandemic. If you are an older worker, you also have a higher risk of developing a more severe form of the disease. However, your employer cannot discriminate against you based on your age even if it is motivated by a desire to protect you. To learn more about your rights, contact Swartz Swidler to schedule a consultation by calling us at 856.685.7420.