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Employment
Law : Age Discrimination
Age
discrimination in employment is a violation of both federal and
state law. This brochure is designed to acquaint you with the subject
of age discrimination and to discuss, in general terms, the laws
that govern and protect your rights in this ever-present area.
I.
FEDERAL LAW
The Age Discrimination in Employment Act of 1967 (ADEA) prohibits
discrimination by employers, employment agencies and labor organizations
against any individual "because of such individual's age"
in the terms, conditions or privileges of employment. The ADEA
applies to all workers age 40 or over, with no maximum age limitation.
No legal protection is provided by the ADEA for those under age
40.
Prior to filing a lawsuit in court, an individual must file a
charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) within 300 days of the alleged age discrimination.
However, no right-to-sue letter is required in order to pursue
court action. The employee must simply wait for a sixty (60) day
period and may thereafter file a suit in state or federal court
based upon a violation of the ADEA. The ADEA provides for a "referral"
to the state agency and permits the simultaneous filing of the
charge of discrimination with the state agency and the EEOC.
Proof establishing discrimination cases is seldom direct; rather,
in most cases a court must look to surrounding circumstances,
circumstantial evidence, to make a determination as to whether
a person has been the victim of discrimination. A party may meet
his burden of proving discrimination directly, by presenting direct
or circumstantial evidence that age was a determining factor in
his discharge. However, typically, a party may rely upon the proof
scheme established in McDonnell Douglas Corp. v. Green and Texas
Department of Community Affairs v. Burdine. In Texas Department
of Community Affairs v. Burdine, supra., the United States Supreme
Court set forth the manner in which trial courts should consider
claims based on Title VII when the evidence is primarily circumstantial.
An employee has the initial burden of establishing a prima facie
case of discrimination by a preponderance of evidence, Burdine,
supra, 450 U.S. at 254, 101 S.Ct. at 1093, which, once established,
raises a presumption that the employee was discharged by the employer
on discriminatory grounds. In order to establish a prima facie
case of age discrimination under McDonnell Douglas and Burdine,
the employee must demonstrate that (1) the employee is a member
of the protected age group; (2) he is qualified for the position
he held; (3) the employee was discharged, demoted or otherwise
adversely affected; and (4) a person outside of the protected
class replaced the employee. In St. Mary's Honor Center v. Hicks,
the United States Supreme Court held that the burden of proving
discrimination remains with the Plaintiff throughout the trial.
In order to prevail at trial, it is not necessary for the employee
to prove that age was the sole or exclusive reason for the employer's
decision; it is only necessary for the employee to prove that
age made a difference.
In situations involving a reduction-in-force where the employee's
job is eliminated, an employer seldom seeks a replacement for
the discharged employee. Accordingly, the fourth prong of the
prima facie case is altered to require that the employee "produce
evidence, circumstantial or direct, from which the factfinder
might reasonably conclude that the employer intended to discriminate
in reaching the decision at issue."
Individuals may seek unpaid wages, liquidated damages, loss of
all job benefits and attorney's fees as relief. A claim under
the ADEA may be filed in either state or federal court and the
employee has a right to a trial by jury.
If a right-to-sue letter has been issued by the EEOC, litigation
must be filed within 90 days of receipt of that letter; otherwise,
the ADEA case may be time-barred and, therefore, lost forever.
II.
FLORIDA LAW
Section 760.10 of the Florida Statutes provides that it is unlawful
for an employer to " . . . discharge or fail or refuse to
hire any individual, or otherwise to discriminate against any
individual with respect to compensation, terms, conditions, or
privileges of employment, because of such individual's . . . age."
The Florida Legislature enacted the Florida Civil Rights Act of
1992 which took effect on October 1, 1992. This new law provides
for a trial by jury and permits a court to award compensatory
damages, i.e., pain and suffering, mental anguish, etc. and punitive
damages not to exceed $100,000.00. In order to take advantage
of the new law, the party must initially file a charge of discrimination
with the Florida Commission on Human Relations (FCHR) within 365
days of the last act of age discrimination. After conducting its
investigation, if the FCHR determines that there is reasonable
cause to believe that discrimination exists, the employee may
bring a civil action for damages against the wrongdoer and/or
employer.
A claim under the Age Discrimination in Employment Act, as amended,
may be combined in the same lawsuit with an action under the Florida
Civil Rights Act of 1992.
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