The Job Search and Discrimination by Age

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When employers shut you out because you exceed some arbitrary age limit, this can be exceedingly frustrating. Not only is the employer perpetrating an obvious injustice, in many cases, it may be clear that you are best candidate for the position. There are laws prohibiting many types of discrimination. U. S. Equal Employment Opportunity Commission (EEOC) enforces these laws. It behooves an employer to know the relevant laws and regulations. Age is one of the areas of discrimination covered by laws.
Employers are not to treat job applicants or existing employees less favorably because of their age. Current law, covered by Age Discrimination in Employment Act of 1967 (ADEA), applies to employees and job candidates equally. The law applies to people age forty and over. Employers can favor an older employee over a younger employee but not the other way around. The law applies even if both employees are over forty. In other words you cannot hire a 45 year old worker over a 55 year old employee due to age.
Work Contexts and Age Discrimination
age discrimination, age, workplaceThe law covers discrimination in many aspects including hiring, termination, pay level and pay raises, work assignments, promotions, layoffs, benefits, training and general working conditions.
Harassment and Age Discrimination

Law forbids harassment due to age. Examples of such harassment could include offensive remarks about a workers age. Harassment is not everyday good-humored banter or an isolated remark. However, if the banter and remarks become so severe and frequent that it creates a work environment that is hostile or offensive, that is harassment and prohibited by law. If the adverse treatment due to age results in negative employment decisions, such as termination, that is considered harassment and prohibited by law. It will be considered harassment if it is the victim’s manager or supervisor, a coworker or even someone who is not an employee such as client or vendor.
Policies, Practices and Age Discrimination
 Policies and practices implemented by an employer need to be applied to everyone without regard to age. When applied, policies and practices can be illegal if they can be shown to have harmed or impacted negatively employees forty year old or older due to their age. Areas commonly effected include:
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  • Training and apprenticeship programs.
  • Want ads and job notices.
  • Employment inquiries.
  • Benefits and retirement policies.

Any employer with more than twenty employees is subject to the Age Discrimination in Employment Act. It also applies to all government agencies, federal, state and local.

Nooses in the Workplace: A Disturbing Trend

Noose, workplace, eeoc, discriminationA noose is placed on a desk or a chair, or on a door or in a locker. The symbolism is clear. Nooses in the workplace are meant to intimidate because of race. The noose of the hangman is meant to be a frightening visual representation of the harassment that included thousands of black people who died at the hands of lynch mobs following the civil war and on into the twentieth century. This history has led to symbolic use of a noose. It has long been a tool of various hate groups. The turning up of nooses in the workplace has been having an affect on black employees, and that affect has been spilling over to affect other minorities.
Equal Employment Opportunity Commission (EEOC) officials and law enforcement officials report on this trend. While companies routinely try to settle nooses in the workplace cases out of court, the EEOC are always pursuing dozens of such cases. The EEOC point out that, when in seen light of their overall caseload, these cases are disproportionally high.  The EEOC maintains that nooses in the workplace is a growing trend.
Every case of nooses in the workplace has its own distinctive characteristics, but there seem to be elements common to most of the cases brought forward. The noose is almost never the only method of intimidation. Racist slurs, racial epithets, racist jokes, racist graffiti and other ongoing intimidation and harassment usually accompany the noose.
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No one knows for sure why these racist incidents have risen lately. Some discrimination attorneys have speculated that there may be a growing intolerance by younger workers not familiar with the civil rights movement and struggles of the 1950’s and 1960’s. The incident may grow out of resentment of some whites over the implementation of affirmative action resulting in diverse workplaces where blacks and minorities were previously excluded.
Another reason cited for the rise in such incidents reported to EEOC is a growing number of employers fighting it in court. Some employers are referring to the incidents as banter and horseplay between employees without harmful intentions.Diversity, discrimination, equality, workplace
There have been some accusations of minority workers filing false claims for purpose of collecting money. Employment and discrimination attorneys generally agree that a false claim of racially related harassment, violence and misconduct in the workplace is extremely rare. History has borne out that out; there have been only a handful of false claims involving nooses in the workplace. Employment and discrimination attorneys also point out that, when subjected to scrutiny, the false claims are easily brought to light.

Workers Adjustment and Retraining Notification Act (WARN)

The Workers Adjustment and Retraining Notification Act (“WARN”) became effective on February 4, 1989.  WARN requires employers to give employees notice when an employment change is advanced.  The Act calls for at least sixty (60) days notice to employees who will experience employment loss either because of a plant closing or because of a scheduled mass layoff.
An employee experiences employment loss in any one of the following three scenarios:

  1. An employment termination, other than a discharge for cause, voluntary departure, or retirement;
  2. A layoff exceeding six (6) months;
  3. A reduction in an employee’s hours of work of more than fifty (50) percent per month for a period of six (6) months.

WARN covers employers who have more than one hundred (100) employees.  Employees who work less than six (6) of the past twelve (12) months, as well as employees who work less than twenty (20) hours a week are not counted into this total.  Private for profit or non-profit, as well as public and quasi-public entities who operate in the commercial context are obligated under WARN to give their employees notice pending a plant closing or mass layoff.  Federal, State or local government entities are governed under WARN.  Hourly, salaried, managerial and supervisory employees are all entitled to the sixty (60) day notice.  Business partners however, are not entitled to the Act’s protections.
Employers of a temporary project are not required to give their employees notice prior to plant closings or mass layoffs.  Additionally, if the closing of the plant or mass layoff is the result of completion of a project, those workers are also not entitled to WARN’s protection.  The employees must have been hired with the understanding that their employment was conditional on the completion of the project.  An employer cannot label an ongoing project as temporary to avoid the requirements under the WARN act.    Additionally, striking employees are not entitled to notice when their actions lead to a lockout, which acts as an equivalent to a closing or mass layoff.  Non-striking employees who are adversely affected are entitled to notice.
If fifty (50) or more employees will experience employment loss (defined above) during any thirty (30) day period, then WARN requires employers to inform their employees.  Part time employees and new employees are not included in this employee total.  Advanced notice is also required when an employer has a mass layoff proposed.  If during any thirty (30) day period, five-hundred (500) or more employees, or forty-nine (49) to five-hundred (500) employees, which make up thirty-three (33) percent of the workforce are going to be laid off, then the employer must give notice.  The employee calculation for plant closings apply to mass layoffs as well (part time and new employees are not included in the total employee calculations).
If an employer plans to sell his business or is involved in the sale of the business, employees are still entitled to receive notice if a closing or mass layoff is proposed.  It is the seller of the business’ responsibility to give sixty (60) days notice to his employees up to and including the date/time of the sale if there is a risk of employment loss.  The buyer is responsible to provide employees with sixty (60) day notice of any proposed plant closing or mass layoff after the date/time of the sale.  Notice that the business has been sold is not required unless a closing or mass layoff is in the works.
The employer must give notice to either the chief elected officer of exclusive represented employees, the labor union, or to unrepresented workers who may reasonably be expected to experience employment loss.  Even employees who do not count towards employment totals, those workers who work less than twenty (20) hours a week or who have worked less than six (6) of the last twelve (12) months are still entitled to due notice.  Notice must also be given to the State dislocated worker unit, as well as the chief elected officer of the local government where the employment site is located.  There are, however, three exceptions to this requirement:

  1. If the employer is seeking new capital to stay open and advanced notice would ruin this opportunity, then notice is not required.  This exception only applies to plant closings and not mass layoffs.
  2. If a plant closing or mass layoff was not reasonably foreseeable at the time notice is required, then the notice requirement is excused.
  3. If a plant closing or mass layoff is the result of a natural disaster, such as a flood, earthquake, drought or storm; notice is not required.

If an employer does not provide sixty (60) days notice, and relies on one of the exceptions listed above, the employer must prove that one of the exceptions did in fact take place.
While notice is required sixty (60) days in advance, there is no requirement delineating what that form must be.  The notice must be in writing, but any reasonable method of delivery that will ensure receipt sixty (60) days prior to closing or mass layoff will suffice.  The notice must specify the reasons for a plant closing or mass layoff.  If either will occur more than fourteen (14) days after the date announced in the notice, then additional notice on behalf of the employer is required.
If you have been affected by a plant closing or mass layoff and your employer has not followed the requirements under the Worker Adjustment and Retraining Notification Act, contact Valli, Kane & Vagnini to learn more about your rights and legal options.