Discrimination may occur in many different forms and in various ways. You might have a “gut feeling” that you were discriminated against. But how can you tell if you have a valid case?
Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. Also, while the federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred.
There are several questions that you can ask yourself to help determine whether you were discriminated against and whether you will be able to prove that the discrimination occurred.
1. What is discrimination?
There are several federal laws that protect you from discrimination in the workplace. Each federal law makes it illegal to discriminate against certain categories of people, known as protected classes. Not all types of discrimination are protected under the federal laws. The federal anti-discrimination laws only protect you if you fall into a protected class or category. The protected classes differ under the various federal laws and are summarized below.
Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.
The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.
Some state and local laws also make it illegal to discriminate against someone on the basis of gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. See what categories your state protects against in our Filing a Discrimination Claim page.
If you believe you have been discriminated against based on your status as a member of a protected class or category, there may be several types of claims that you could bring.
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule or practice to have a disproportionate adverse affect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job, or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.See the Retaliation Page for more information about retaliation claims.
There are two types of evidence that can be used to prove discrimination: direct and circumstantial.
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.
For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.
According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:
- Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
- Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
- Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
- Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?
If you can show at least these things, the law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.
The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.
An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:
- Were you treated differently than a similarly situated person who is not in your protected class?
- Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
- Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
- Does your employer have a history of showing bias toward persons in your protected class?
- Are there noticeably few employees of your protected class at your workplace?
- Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
- Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
- Are there statistics that show favoritism towards or bias against any group?
- Did your employer violate well-established company policy in the way it treated you?
- Did your employer retain less qualified, non-protected employees in the same job?
If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.
No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.
Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.
In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state, a reason for its conduct. It does not have to prove that it is the true reason.
A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.
If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.
Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:
- The stated reason is factually untrue
- The stated reason is insufficient to have actually motivated your discharge
- The stated reason is so riddled with errors that your employer could not have legitimately relied upon it
- Your protected status is more likely to have motivated your employer than the stated reason
- Powerful direct or circumstantial evidence of discrimination
In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.
Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.
- Back Pay. Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
- Front Pay.Front Pay is lost future earnings resulting from the discrimination.
- Lost Benefits. Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
- Emotional Distress Damages. Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
- Punitive Damages. Punitive damages are intended to punish the employer for particularly egregious conduct.
- Attorneys’ Fees. In addition to the damages you can recover for your injuries, you can also win an award of attorneys fees, expert witness fees, and court costs.
This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.
Elderly and youthful employees sometimes experience age discrimination in the workplace. Ageism, is stereotyping and discriminating against individuals or groups on the basis of their age. Employers are generally not allowed to hire, fire, promote, or decide an employee’s compensation based on their age. However, it can be difficult to determine whether an employer’s actions were motivated by age discrimination, or by a genuine belief that another person can perform a particular job better. States have extensive complaint and fact finding procedures to help employees determine when they have been victims of age discrimination and to assert their rights. Read below to learn more about age discrimination and how the law protects you.
1. What is age discrimination?
If you are 40 years of age or older, and you have been harmed by a decision affecting your employment, you may have suffered unlawful age discrimination. The Age Discrimination in Employment Act (ADEA), discussed below at number 2, is a federal law that protects individuals 40 years of age or older from employment discrimination based on age. Here are some examples of potentially unlawful age discrimination:
- You didn’t get hired because the employer wanted a younger-looking person to do the job.
- You received a negative job evaluation because you weren’t “flexible” in taking on new projects.
- You were fired because your boss wanted to keep younger workers who are paid less.
- You were turned down for a promotion, which went to someone younger hired from outside the company, because the boss says the company “needs new blood.”
- When company layoffs are announced, most of the persons laid off were older, while younger workers with less seniority and less on-the-job experience were kept on.
- Before you were fired, your supervisor made age-related remarks about you, such as that you were “over-the-hill,” or “ancient.”
If any of these things have happened to you on the job, you may have suffered age discrimination.
The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.
While an older worker is also covered by several other workplace laws, these are the main federal laws which specifically protect older workers against discrimination based on age. Age discrimination may be accompanied by other forms of illegal discrimination as well, such as sex, race, or disability discrimination.
The laws of most states also make it illegal to discriminate on the basis of age.
Workers who are 40 years of age or older are protected by the ADEA from employment discrimination based on age, if the employer regularly employs 20 or more employees.
Many states also make it illegal to discriminate on the basis of age; however, the minimum number of employees needed to bring a claim varies. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
If two workers are both protected by the ADEA, an employer still may not use age as the basis for an employment decision. For example, a company can’t hire a 45-year-old over a 62-year-old simply because of age; if the company hired the younger employee due to her age, the 62-year-old employee would still have a claim.
The ADEA’s protections apply to both employees and job applicants. If you are a current employee over 40 and are fired or not promoted due to age, you are protected. If you are not hired due to age, you are also protected.
No. The Supreme Court has established that an employer does not violate the ADEA by providing preferential treatment to older worker over younger ones, even where the younger workers are over the age of 40.
In the recent discrimination case, General Dynamics Land Systems, Inc v. Cline, No. 02-1080, 540 U.S. (2004) the company and its union negotiated a collective bargaining agreement that offered retirees health benefits only to those employees who were at least 50 years of age at the time of the agreement. A group of employees who were in their forties sued, claiming that the age requirement constituted illegal age discrimination in violation of the ADEA. The Supreme Court held that the ADEA only prohibits discrimination in favor of younger employees and does not address discrimination that favors older workers.
The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor unions, as well as to the federal government. The ADEA does not apply to elected officials or independent contractors. A number of court decisions have determined how to count the number of employees, so you may need to consult with an attorney to determine whether you are covered if your company employs approximately 20 employees.
If your workplace has fewer than 20 employees, you may still be protected under the laws of some states, even though your employer is not covered by the federal ADEA. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
While the ADEA states that state employees are covered under its protections, recent U.S. Supreme Court decisions have limited the ability of state employees to sue their employers for money damages (see question 15). If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.
No. The ADEA contains several exceptions:
- Executives or others “in high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
- There are special exceptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. If these exceptions may apply to you, check with your personnel office or an attorney for details.
- The ADEA makes an exception when age is an essential part of a particular job — also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ.
Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment — including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. As a result, the following practices are also illegal:
- An employer cannot retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
- An employer may not include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the essence of the business (see question 6).
- Apprenticeship programs, including joint labor-management apprenticeship programs, generally may not discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain limited exceptions; consult with an attorney if this may affect you.
- Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
- An employer cannot force you to retire at a certain age (except for a few narrow exceptions).
Under the ADEA, there has to be a valid reason — not related to age — for all employment decisions. Examples of valid reasons would be poor job performance by the employee or an employer’s economic trouble. In the case of layoffs, a company cannot use age as the basis for determining who is laid off and who is kept on. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, there may be a basis for an ADEA complaint or lawsuit, especially if the employer has hired younger workers to take the places of workers over 40.
Yes, in very limited circumstances. The ADEA makes an exception when age is an essential part of a particular job — also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ. However, an employer who sets age limits on a particular job must be able to prove the limit is required because a worker’s ability to do the job after a certain age is actually diminished.
It depends. The ADEA only prohibits discrimination based upon age. Although increased age most often correlates with more skills and experience in the workplace, an employer is not required to hire the most qualified or experienced person for a particular position if the company believes that person’s skills and experience are not the best match for the position. While some believe the explanation that a worker is “overqualified” is in essence a codeword for age discrimination, an employee would need to prove that the employer was motivated by the worker’s age, rather than a valid reason other than age.
However, it would be unlawful for the company to refuse to hire an experienced individual based on the assumption, solely based on the applicant’s age and lacking proof, that because they have more experience and/or skills than the position requires, the older employee might become bored and leave the job after only a short time. This is an example of the kinds of ageist stereotypes that can cause employers to discriminate against older workers.
It depends. A valid reason other than age a company may use to justify the hiring of a younger worker is that the younger worker has less experience and a lower salary history, and may be willing to work in the same job for a lower salary than the older worker. If the company bases the hiring decision on this reason, it is not illegal.
However, an older worker cannot be terminated on the basis that the company either currently or in the near future will be required to pay retirement benefits or more costly insurance benefits (see the next section).
Firing workers in order to prevent them from earning their promised pensions is a technique some employers use to save money, but it is not legal. When the Older Workers Benefit Protection Act (OWBPA) was passed in 1990, it became clearly illegal for employers:
- to use an employee’s age as the basis for discrimination in benefits, and
- to target older workers for their staff cutting programs on the basis that benefits were too costly.
An employer cannot terminate an older worker on the basis that benefits are too costly. The company must follow the “equal benefits or equal cost” rule, by providing either equal benefits to older and younger workers, or paying the same benefit costs for all employees. The law only allows an employer to reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. In other words, if an employer pays only $100 in monthly premiums for each worker, this policy does not violate the ADEA even if it causes the older worker to make a higher employee contribution or to have lesser benefits than a younger worker.
An employer could not, however, refuse to pay for the health benefits of all workers over 55 on the grounds that “it costs too much,” if the employer pays the benefits of younger workers, or terminate all older workers so that the pool of employees for insurance purposes is less costly to insure.
Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
As long as an employee is performing his or her job duties, generally the answer is no. If an employee can no longer perform his or her job duties, however, the employer is allowed to discharge that person.
The ADEA does have special exemptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. Executives or others “in high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more. If these exceptions may apply to you, check with your personnel office or an attorney for details.
However, in an effort to save the company money or to reduce the size of the workforce without resorting to involuntary layoffs, employers will often offer older employees early retirement. Offering voluntary early retirement does not violate the ADEA. In exchange for increased retirement benefits or severance, employers may ask employees to waive their rights under the ADEA. In order to be legally effective, the waiver you are asked to sign must follow certain requirements (see next section).
If asked by your employer, you may agree to waive your rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, requires that a waiver be knowing and voluntary. The law sets out specific minimum standards that must be met in order for a waiver to be considered valid.
Among other requirements, a valid ADEA waiver:
- must be in writing and be understandable. This means that if you only had a conversation with your boss about what will happen when you leave the company, without anything being put in writing, you have not waived your right to pursue an ADEA claim.
- must specifically refer to ADEA rights or claims. Some companies use what is called a “general release,” where you agree to waive any and all claims against the company without the types of claims being specified. While this may be valid in other situations, it will not be legally sufficient to waive your ADEA claims.
- may not waive rights or claims that may arise in the future. This means you can agree to waive your right to sue for something that already happened, but you cannot waive your right to sue for something that hasn’t happened yet. For example, you can waive your right to file a claim over your termination, but if a few years later, your employer reduces your retirement benefits, you still may be able to file a claim over that.
- must be in exchange for valuable consideration. This is a legal term that means that you must receive something in exchange for signing that you would not have received otherwise, like a larger severance package or additional benefits. If you were entitled to certain benefits anyway, and did not receive anything additional in return for signing a waiver, it is not valid under the ADEA.
- must advise you in writing to consult an attorney before signing the waiver. While you do not have to actually consult with an attorney, and may choose not to, you must have been advised in writing to consult an attorney.
- must provide you with at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. If you are presented with a waiver that you must sign immediately without the time to consider it properly and/or consult with an attorney, you cannot lose your rights under the ADEA. If you have signed something that you were only given a few days (or few hours) to consider, and you suspect that you are a victim of age discrimination, you should consult with an attorney to see whether your waiver is valid or not.
In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive. For example, if the offer is being made to a group or class of employees, your employer must inform you in writing how the class of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made. This allows you to have relevant information, that you might not know otherwise, about how the offer affects older workers compared to other workers in the company. You should consult with an attorney to determine whether the waiver you have signed has complied with the more extensive requirements.
The U.S. Supreme Court has also ruled that you may challenge the validity of the waiver without first giving back the money you received in exchange for the waiver. Prior to this decision, based on the law generally applicable to other kinds of contracts, if you had accepted the money, you were considered to have “ratified” the waiver, or to have consented to the company’s violation of the law in exchange for the money you received. This prevented older workers, who may have already spent all or part of the money before they learned that the waiver was illegal, from being able to challenge illegal waivers under the OWBPA.
Under the ADEA’s language, which Congress passed in 1967, the law specifically protected state government employees as well as federal, private sector and union employees. This meant that, just like other workers, state employees could sue their employers — the states for which they worked — for age discrimination.
However, the U.S. Supreme Court in January of 2000 ruled that state employees were not allowed to use the ADEA’s provisions which allow employees who successfully sued their employers to recover money for back wages and other monetary losses. In the case of Kimel v. Florida Board of Regents, (No. 98-791, decided January 11, 2000), the Court held that Congress did not have the authority to authorize certain kinds of age discrimination lawsuits against states.
Thus, if you are a state employee, the ADEA no longer protects you from age discrimination. However, you may be protected by the laws of the very state that is discriminating against you. If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.
The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of job discrimination related to an individual’s age in workplaces of 20 or more employees. Most states have their own agencies that enforce state laws against discrimination (see question 19 below).
Claims of unlawful discrimination on the basis of age can be difficult to prove. An employer can only be held liable for age discrimination if the employee can show that an intentional action was taken against the employee because of the employee’s age. A 2009 Supreme Court decision,Gross v. FBL. Financial Services, Inc., held that the plaintiff must prove that age was the sole reason for discrimination. This significantly restricted the cases relating to age discrimination.
Victims of age discrimination can recover remedies to include:
- back pay,
- front pay,
- liquidated damages (up to twice the amount of back pay) may be awarded in the event of a “willful” violation, if the employee proves that employer knowingly violated the ADEA or acted in “reckless disregard” of its provisions,
- other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination).
Remedies also may include payment of:
- attorneys’ fees,
- expert witness fees, and
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law.
Select your state from the map below or from this list.