Month: August 2021

Any kind of discrimination based on national origin is against the law, whether it is being carried out by a US company against someone of non-American descent or involves a foreign company’s US operations preferring someone from its own country over an American citizen. Employment and hiring practices that favor employees or applicants of a particular nationality can also be considered discrimination based on national origin and are against the law.

Protections Against National Origin Discrimination

Title VII of the Civil Rights Act prohibits discrimination in hiring, promotion, termination, pay, and other aspects of employment based on national origin, just as it does for race, sex, religion, and color. According to the Equal Employment Opportunity Commission (EEOC), national origin discrimination is defined as treating an applicant or employee unfavorably because they are from a particular part of the world, of a specific ethnicity, have a certain accent, or appear to be of a particular ethnic background. It also encompasses unfavorable treatment of employees or applicants who are married to a person of a specific national origin.

All employees who work in the US, whether employed by an American or foreign company, are protected by these laws. So, if an American is working for a foreign company on US soil and is discriminated against because of their origin, the same protections apply. This is sometimes referred to as reverse discrimination against a US worker. The only exception is when a foreign company is covered by a treaty or international agreement that allows them to give preference to their own nationals for certain positions.

Recent Cases

In 2020, the EEOC received almost 6,400 new charges of discrimination based on national origin and resolved over 6,900 (including cases filed in previous years). Of those resolved, 6.2% were settled. When the settlement included monetary compensation, companies accused of discriminating based on national origin paid out a total of $26.3 million in 2020.

Here are some examples of recent EEOC settlements involving claims of discrimination based on national origin:

• In June 2020, Albertson’s agreed to pay $210,000 to settle a national origin discrimination lawsuit alleging the grocer allowed a manager in one of its La Mesa, California, stores to harass Hispanic employees by forbidding them to speak Spanish and requiring English only. In addition to the compensation, Albertson’s agreed to review and revise its discrimination policies, and provide employee and manager training with an emphasis on language discrimination.
• City Sports, a chain of sports fashion stores in Chicago and surrounding areas, settled a race and national origin discrimination case in which it was accused of favoring Koreans over African Americans and Hispanics for management positions. In the November 2020 settlement, the retailer agreed to pay 19 current and former employees a total of $420,000, and hire a consultant to help implement anti-discrimination policies, procedures, and training.
• In April, Helados La Tapatia in Fresno, California, agreed to pay $200,000 as part of a national origin discrimination lawsuit. The ice cream company was accused of favoring Hispanic job applicants over black, white, and Asian applicants for entry-level, warehouse, and driver positions, as well as discouraging non-Hispanic applicants from applying. The company agreed to implement an open hiring and recruiting policy, among other settlement requirements.
• Last month, Wild Fork Foods in Miami, part of JBS USA, agreed to pay $130,000 to settle a claim of national origin and racial discrimination. Wild Forks was accused of violating federal law when a Hispanic female employee in the Miami corporate office was subjected to a hostile work environment based on both her race and national origin, subjected to retaliation for complaining, and ultimately forced out of her job. The decree also includes specialized training on national origin discrimination, among other requirements.

Justice Department Efforts

In addition to EEOC efforts to protect US workers against reverse discrimination by foreign corporations, the Justice Department Civil Rights Division’s Immigration and Employee Rights Section has been pursuing cases against companies that discriminate against US workers in favor of temporary visa holders. In 2017, the department launched the Protecting US Workers initiative and has been pursuing employers it views as denying opportunities to US workers.

In December 2020, the department settled a case against Ikon Systems, a staffing and recruiting company based in Texas. The settlement resolved claims that Ikon was discriminating against US workers by posting job advertisements specifying a preference for applicants with temporary work visas. The claim included allegations that Ikon failed to consider a single US citizen for the openings.

At Barrett & Farahany, we are happy to answer any questions about discrimination based on national origin. We seek justice at work for all employees. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

As the economy has opened up, more employees have returned to some form of in-person employment, with one exception. Working mothers, who took on the bulk of caregiving responsibilities during the pandemic and scaled back or totally left the workforce in droves, are still plagued by a lack of childcare and in many cases unable to return to the workplace. The immediate impact is troublesome, but the long-term effect on women’s advancement and gender diversity in the workplace could be irreparable.

In a recent Fulton County Daily Report article, Amanda Farahany, managing partner of Barrett & Farahany, and Elizabeth Sigler of Stanton Law discuss the potential for future sexual discrimination claims if employers start penalizing women based on stereotyped assumptions related to caregiving obligations. They also pose a challenge to businesses and the government to come up with a better solution in order to keep gender parity from becoming a COVID-19 casualty.

Familial Status is Not a Protected Class

Most pandemic-related terminations have had nothing explicitly to do with gender but instead have been a result of an employee not being able to perform their job, write Farahany and Sigler. Even if the reason for poor attendance or performance is related to lack of childcare, employers are not required to retain employees who cannot make it to work or do their job, the authors note. Being a parent is not a protected class in Georgia and employers are not required to find accommodations.

Potential Basis for Title VII Sex Discrimination Claims

With no legal protections for caregivers, Farahany and Sigler contend that sex discrimination under Title VII is theoretically the likeliest basis for future claims. They give the example of an employer that exhibits gender bias against women under the assumption that female employees are caregivers and less committed to their jobs. If the employer subjects the women to negative performance reviews and adverse consequences under those assumptions, a female worker might have a Title VII sex discrimination claim.

Likewise, if an employer hires a man over a woman who they assume has potential caregiver obligations, the employer may have unwittingly offered up evidence for the woman to argue stereotyped assumptions, note Farahany and Sigler. Stereotypes hurt all women, not just mothers with caregiver responsibilities, note the authors.

Solution Requires Public and Private Commitment

The solution to the childcare problem is not an easy one. Continued flexible work situations and help paying for childcare are two options that could help, but these alone do not solve the problem, note Farahany and Sigler. They challenge businesses and the government to come together to create a solution, be it statewide childcare legislation, making familial status a protected class, or something else.

To read the full article, click here. (Note, summary only available unless you are a Fulton County Daily Report subscriber.)

If you suspect your employer is applying gender stereotypes in performance reviews, promotions, or hiring decisions, and thus negatively impacting you and other women, please contact us. The experienced team at Barrett & Farahany can help evaluate your situation and make sure you receive justice at work.

The COVID-19 pandemic may have changed the way we work, but it didn’t keep sexual harassment at bay. Even with fewer people in offices, a dispersed workforce, and many interactions virtual for the past year, the problem has persisted and, in some cases, worsened. As women moved home to work, the harassment moved online to Zoom calls, emails, and texts. In in-person settings, perpetrators took advantage of emptier workspaces or were emboldened by a mask.

Remote Harassment Is Still Harassment

According to the EEOC, sexual harassment includes unwelcome sexual advancements, requests for sexual favors, or verbal harassment of a sexual nature, all of which can occur online. Sexual harassment becomes illegal when it creates a hostile or offensive work environment.

The agency has yet to release statistics related to sexual harassment charges during the pandemic. The issue was, however, discussed at a recent EEOC hearing on the impact of the pandemic on civil rights in the workplace. As one speaker noted, the pandemic has created opportunities for increased sexual harassment and retaliation against those who report it.

Zoom Exposure

In probably the most public case of online sexual harassment in the past year, Jeffrey Toobin, a writer for The New Yorker and legal analyst for CNN, was fired by the magazine for what he termed as an accidental exposure of his genitals during a work Zoom call. Toobin, who was reportedly masturbating, has stated that he thought audio was muted and video turned off. On the call with Toobin were staff from both the New Yorker and WNYC, a New York public radio station.

While the Toobin incident might be the most publicized, it is certainly not the only incident. A Pew Research study found that sexual harassment of American women online in all settings, not just at work, had doubled since the last survey in 2017. In 2020, 16% of all female respondents reported being sexually harassed online. Younger women were more likely to have experienced an incident of virtual sexual harassment, with 33% of women under the age of 35 reporting an incident.

Studies in other countries that were specific to the workplace also pointed to an increase in harassment. A survey of women working from home in the UK found that the pandemic had resulted in an upsurge of online sexual harassment, with harassers most often using online work platforms and social media. Almost half of the women experiencing sexual harassment said it was happening remotely, and 23% reported an escalation in incidences since working from home. One state employment commission in Australia reported an 8% increase in sexual harassment complaints since the pandemic began.

Pandemic Exacerbated Risk Factors

In addition to distance and a screen between individuals, online environments are often less formal than in-person work settings and set the stage for workers to feel more comfortable stretching the conversation or text to include a sexually suggestive joke or inappropriate photo. Add to that the fact that many employees working from home are doing so at odd hours, and sending texts, Slack messages, and emails sometimes into the wee hours of the morning. Less supervision and more access could be a dangerous combination. These virtual work settings mimic risk factors identified by the EEOC as common for sexual harassment – workers alone, in isolated workplaces, working late at night.

During the pandemic, these same risk factors were often present when workers ventured into the office or workplace. With flexible hours and shifts, few employees were actually physically present at one time, setting the stage again for a harasser to potentially stage an inappropriate encounter.

Servers Report More Sexual Harassment from Customers

Female restaurant workers were already among the highest in terms of sexual harassment complaints prior to the pandemic, but recent reports point to a worsening during COVID-19 even with fewer customers and employees present. In a December 2020 survey of food-service workers, 40% of tipped workers noted a change in unsolicited sexual comments from customers. Hundreds of female respondents spoke of instances involving a male customer asking a female worker to take off her mask so the customer could calibrate the server’s tip to her looks.

At Barrett & Farahany, we are happy to answer any questions about sexual harassment. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

by B&F Contributor

We’ve come a long way, baby, from first starting to work outside the home in the 19th century to present-day, when women are running boardrooms and holding some of the highest offices in our country. Along with this progression have come laws to support female advancement in the workforce and provide women with equal pay, protection from harassment and discrimination, and more.

Let’s take a look at seven laws that have had the greatest impact on working women.

• Equal Pay Act (EPA) of 1963 – under the EPA, men and women doing substantially the same job in the same workplace must be equally paid. The law doesn’t just apply to salary or hourly wage, but also includes overtime, bonuses, stock options, benefits, vacation and holiday pay, and profit-sharing plans. When alleging a violation, one may file a complaint with the Equal Employment Opportunity Commission or go straight to court. Efforts to close the ages-old gender pay gap ramped up during World War II, but it wasn’t until President Kennedy signed the EPA that pay equity became law.
• Title VII of the Civil Rights Act of 1964 – Title VII, which applies to employers with 15 or more employees, prohibits discrimination based on sex. It also protects women from sexual harassment in the workplace. The original law, passed in 1964, did not include women. Sex didn’t become a protected class under Title VII until 1967. Sexual discrimination is now afforded all the same remedies as other protected classes, including compensatory and punitive damages for intentional discrimination. 
• Pregnancy Discrimination Act (PDA) of 1978 – the PDA prohibits sex discrimination in employment and hiring on the basis of pregnancy, childbirth, or a medical condition related to either. It applies to promotions, job assignments, layoffs, training, and other aspects of employment. The Act also requires companies that offer disability leave to temporarily disabled employees to extend the same policy to women who are temporarily disabled by pregnancy.
• Family & Medical Leave Act (FMLA) of 1993 – whereas the PDA prohibited discrimination against pregnant women, it wasn’t until 1993 and the passage of the FMLA that certain female employees of qualifying employers were legally assured up to 12 weeks of job-protected unpaid leave for childbirth as well as caring for a newborn or adopted child.
• Lilly Ledbetter Fair Pay Act of 2009 – as the first piece of legislation signed into law by President Obama, this act resets the two-year statute of limitations for an equal pay complaint with each new paycheck. Prior to the Act, the statute of limitations began with the first paycheck when unequal pay took place. If a woman had been unequally paid for three years but only found out about it with her most recent paycheck, she couldn’t file a claim under the old rules because the two-year statute had expired.
• The Patient Protection and Affordable Care Act of 2010 – the Affordable Care Act requires employers to provide reasonable break time for an employee to express breast milk for up to one year following the birth of her child. The Act also requires employers to provide a shielded space, other than a bathroom, for women to express milk. The law applies to employers with 50 or more employees.
• Tax Cuts and Jobs Act (TCJA) of 2017 – in this legislation, Congress took the issue of sexual harassment and discrimination to the corporate tax return. For years, payments to settle sexual harassment claims have been considered a deductible business expense, even if they contained a nondisclosure agreement and remained a secret to the public and shareholders. In an effort toward more disclosure and clarity of sexual harassment and discrimination charges, the TCJA made settlements with nondisclosure agreements nondeductible.

At Barrett & Farahany, we are happy to answer any questions about equal pay, Title VII and sexual discrimination, policies toward pregnancy and childbirth, and other laws and gender-related issues primarily affecting women. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

by B&F Contributor

The American Rescue Plan Act (ARPA) received a lot of attention for its third round of stimulus checks. As time has passed, however, it appears the continuation and expansion of emergency paid sick leave (EPSL) and expanded Family and Medical Leave (EFML) might have an even greater impact on some employees’ finances. This part of the ARPA is also referred to as the new Families First Coronavirus Response Act or FFCRA.

The provisions are not mandatory for employers, as they were with the original FFCRA, but companies that provide the benefits receive specific tax credits – hopefully, an incentive that many employers will take advantage of. If you work for a business with fewer than 500 employees that voluntarily provides the new FFCRA benefits, you could receive up to two weeks of additional paid sick leave and up to 12 weeks of paid family leave for pandemic-related reasons between April 1 and September 30. 

Extended Benefits for Employees

Here are specifics of the new FFCRA:

• 10-day limit on EPSL reset starting April 1 – between April 1 and September 30, employees are entitled to 10 new days (up to 80 hours) of EPSL, even if they used their allotment under the old FFCRA.
• ARPA adds three new qualifying reasons for EPSL – these include getting a COVID-19 vaccination; recovering from an illness, injury, or condition related to getting the vaccine; or getting or awaiting the results of a COVID-19 test because the employee was either exposed or asked by the employer to take a test.
• FFCRA original qualifying reasons still apply – an employee is eligible for EPSL if he or she is:
  • subject to a federal, state, or local quarantine or isolation
  • advised by a healthcare worker to self-quarantine
  • experiencing COVID-19 symptoms and seeking medical attention
  • caring for an individual in quarantine
  • caring for a child whose school or care facility is closed due to the pandemic
  • experiencing substantially similar conditions
• Payments for EPSL differ depending on the reason for leave – employees receive either 100% of their pay (up to a maximum of $511 a day) or two-thirds of their regular rate (up to $200 per day) for the 10 days of qualifying sick leave.
• EFML can now be used for the same qualifying reasons as EPSL.
• New FFCRA eliminates the requirement that the first two weeks of EFML be unpaid – employees who qualify for EFML are now eligible for up to 12 weeks of paid leave rather than only 10 under the original FFCRA. Employees are paid at two-thirds of regular wages, up to a maximum of $200 per day, during those 12 weeks. This increases the total an employee can receive EFML from $10,000 to $12,000.
• ARPA includes non-discrimination rules – for both EPSL and EFML, employers cannot favor highly compensated employees, full-time employees, or any employee on the basis of tenure under the new FFCRA rules. Any employer that does so risks losing their tax credits.

What About Partial Benefits?

 Some areas of the new law are still unclear:

• Does EFML reset like EPSL? The law is not specific, but some government officials have speculated that it will.
• Can employers provide voluntary EPSL and not EFML? Or vice versa? Again, the law is not specific. Since the benefits are voluntary, this may be an option.
• Can employers provide partial expanded EPSL and EFML? Since the provisions are voluntary and the law is not specific, it seems that employers could offer six weeks or any amount.

Neither the Department of Labor nor the IRS, which sets the rules around resultant tax credits that employers receive when voluntarily offering the new FFCRA benefits, has come forward with guidance on these last three questions. Barrett & Farahany will keep you updated as the regulatory agencies release further details around the new FFCRA rules.

In the meantime, we at Barrett & Farahany is happy to answer any questions about the new FFCRA, EPSL, and EFML. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

by B&F Contributor

A year into the pandemic and the female workforce is suffering. Women have been leaving the workforce and losing jobs at higher rates than men due to a variety of pandemic-related factors. This departure creates a greater risk that the pay gap will widen and potentially heralds long-term negative effects on gender equity in the workplace.

Consider the facts: 

• 275,000 women left the U.S. labor force in January.
• As of that month, a total of 2.3 million women had left the U.S. workforce since the beginning of the pandemic, compared to 1.8 million men
• The percent of adult women either working or looking for work was down below 56% in February, compared to almost 58% prior to the pandemic.
• Median weekly earnings for women were 83.4% that of men in the fourth quarter of 2020.
• In September, women made up 39% of the global workforce but accounted for 54% of overall job losses.
• Since spring 2020, the percentage of working moms who had sole responsibility for childcare and schoolwork increased from 33% to 45%.
• One in four women are considering downshifting their careers or leaving the workforce due to the pressures brought on by the pandemic.

The pandemic has had a disproportionately negative effect on women in both hourly and salaried positions. Two main reasons accounting for this are: 

• Job losses are higher in sectors traditionally employing more women (particularly the retail, food services, arts, and social assistance fields, according to Vox).
• Women have taken on a disproportionately larger portion of childcare responsibilities as schools and childcare facilities closed or went virtual.

The Pay Penalty

Women’s departure from the workforce, either by choice or because their position was eliminated, risks widening the pay gap. Women tend to suffer a pay penalty of 7% on average for the same position when returning to work after a prolonged absence, according to a study by Payscale. As women prolong their reentry into the workforce, the risk that they will pay such a penalty as they return to equal jobs only rises.

In its global study on COVID-19 and gender equality, McKinsey & Co. expressed concern that without a concerted effort, the moves toward gender parity in the workforce could be reversed due to the pandemic. This risk affects not only women but also the global economy as a whole, noted McKinsey.

Positive Moves in Washington

While women in the workforce have suffered more than men as a result of the pandemic, the Biden administration is making moves to address the issues of gender equality and the pay gap. In early March, the president signed an executive order establishing a Gender Policy Council. Every cabinet secretary is required to participate with the Council.

Also, in January, Congress again introduced a Paycheck Fairness Act. The Act seeks to increase civil penalties for violations of equal pay provisions and addresses other wage discrimination issues based on sex. 

The Equal Pay Act of 1963, Title VII, and other laws and regulations address harassment and inequality based on gender. At Barrett & Farahany, we are happy to answer any questions about equal pay, policies toward childcare, and other laws primarily affecting women and gender-related issues, particularly in light of COVID-19. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

by B&F Contributor

Social media can be a great place. You can join broad discussions, you can find humorous content, and you can share your thoughts with millions of people. That last part seems to get a lot of users in trouble. Celebrities garner the most attention when they say something out of line. TV host Wendy Williams issued two separate apologies for different offenses after voicing insensitive opinions. And singer Bryan Adams had to perform damage control after posting what many considered xenophobic remarks over his frustrations that the pandemic was canceling his concerts.

In those cases, both figures endured backlash before swiftly issuing apologies. Every day, people who aren’t celebrities post similar thoughts or share controversial opinions, just without the media spotlight. But that doesn’t mean you shouldn’t think before you post. The next time you’re about to join a discussion on social media, ask if what you’re saying can affect things in real life, such as your job.

The short answer is yes. But like most things, there are nuances to the answer. Certain language is protected and cannot be used to justify consequences against you, such as termination. We’ll look at three examples of protected speech and three examples of things that can get you fired.

Protected

• You are allowed to vent about your working conditions or employment policies. It is your right to have an opinion about your job. You’re even allowed to complain about supervisors as long as you do it in a way that doesn’t harm the business.
• Exposing illegal activity at your company, such as discrimination or fraud, may be protected under whistleblower or anti-retaliation statutes. If you have more detailed questions about being a whistleblower, reach out to Barrett & Farahany today. 
• Your employer can’t legally fire you for protected activity just because they don’t like what you post. There has to be a specific and lawful reason, such as proof that your activity is hurting the company. 

Not Protected

• If you’re venting about work, what you’re posting needs to be work-related. You can’t personally attack or ridicule co-workers or managers for things like their looks or the way they speak.
• If you post content that damages the company, trivializes the services or products they offer, or exposes trade secrets or sensitive information, then you can lawfully be terminated. There is a difference between venting about work and tearing down the company image as a whole.
• Even though an employer can’t legally fire you for protected complaints about working conditions, they can fire you for posting inappropriate pictures or content that can damage the employer’s reputation. Anything from lewd to discriminatory language can be grounds for termination.

Social media has grown to be a part of our daily lives, but the legalities surrounding it are still relatively new. Winning a case comes down to having an experienced attorney who can identify the specific details that matter. Give yourself the best chance at winning by working with Barrett & Farahany. 

If you have questions or need consultation on an employment issue involving social media, contact us to see if we can help you.

by Kathy Harrington-Sullivan

For months, legal experts have been predicting a rash of age discrimination lawsuits stemming from layoffs or firings of older workers during the COVID-19 pandemic. While protected by law against age discrimination, older workers do often face issues in the workplace. Not surprisingly, the pandemic has proved to be a challenging time.

Ageism and COVID-19

When it comes to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has been clear in stating that employers are prohibited by the Age Discrimination in Employment Act (ADEA) from involuntarily excluding older individuals from the workplace during the pandemic. This is true even if the action is out of concern for the older worker.

In light of the Centers for Disease Control and Prevention findings that individuals age 65 and older are at higher risk for a severe case of COVID-19, the EEOC has encouraged employers to be more flexible with workers in this age group. Despite this encouragement, older employees are not due accommodations just because of their age. ADEA prohibits firing, harassment, and other discriminatory practices based on age but does not allow for accommodations similar to those provided in Title VII of the Civil Rights Act to other protected characteristics, such as disability and certain conditions related to pregnancy.

Older employees may not be singled out for vaccine mandates by their employer. While EEOC guidance has clarified that employers may mandate all employees get a COVID-19 vaccine, except for those seeking religious or disability accommodations, the agency did not clear the way for employers to insist that only older workers be vaccinated.

Age Discrimination Settlements 

While not related to COVID-19, the EEOC has settled lawsuits in the last two months in favor of older workers. These settlements are positive signs for fighting ageism in pandemic times. 

Here are a few of the recent settlements: 

• Computer Sciences Corporation, a large technology consulting firm, will pay $700,000 in lost wages and damages to former employees who were let go as part of a series of layoffs that targeted workers aged 40 and older. In addition, the CEO of CSC’s parent company will issue a statement to all employees that age discrimination will not be tolerated. The company must also revise its layoff procedures to ensure they are in compliance with laws protecting older workers.
• United Precision Products, an aerospace components manufacturer, will pay $60,000 to a former applicant who at age 64 was asked for his age, date of high school graduation, and driver’s license in a pre-employment interview. The company then refused to hire the applicant. In addition to providing monetary relief, United Precision will have to provide training on the ADEA and revise its discrimination policy.
• Hennepin Healthcare System in Minnesota will revise its employment practices to eliminate what was called a Late Career Practitioner Policy. In violation of the ADEA and Americans with Disabilities Act, the policy required workers aged 70 and older to undergo age-related screenings and medical exams. Affected employees will receive monetary relief as well as reimbursement for out-of-pocket expenses related to the exams.

We at Barrett & Farahany hope you are staying safe and healthy. If you have questions about age discrimination in the workplace, about policies related to older employees, particularly in light of COVID-19, or about the ADEA and other laws that protect older workers, please don’t hesitate to reach out. One of our experienced attorneys would be happy to help.

by Kathy Harrington-Sullivan

There’s an adage that individuals get wiser as they get older, but that saying doesn’t help when it comes to older individuals keeping their jobs in downtimes. While federal law prohibits age discrimination in employee terminations, age-related firings increase by 3.4% for each percentage point increase in a state’s unemployment rate, according to the National Bureau of Economic Research

Older employees who have been in the workplace for longer, and have accumulated years of raises resulting in higher pay, might be the target of a layoff or effort to reduce overall salaries. If a supervisor made derogatory remarks about an employee’s age, or referenced wanting to bring in younger, cheaper workers to perform the same duties, a terminated older worker might actually have been the victim of age discrimination.

Laws that Protect Older Workers

Firing based on advanced age alone is against the law, but unlike other protected characteristics such as race and sex, age is not covered by Title VII of the Civil Rights Act of 1964. Employers are not required to offer accommodations related to age. In current times, that means if an older employee asks to work from home to avoid exposure to COVID-19 and its greater risk to persons of a certain age, an employer does not have to accommodate that request. At the same time, an employer cannot fire an older worker when reducing a workforce due to pandemic changes in business just because of that person’s age and COVID-19 age-related risks

Older employees are instead protected mainly by two federal laws. The first, Age Discrimination in Employment Act (ADEA), forbids discrimination and harassment based on an individual’s age. The ADEA applies to individuals who are age 40 or older working in businesses with 20 or more employees. The ADEA prohibits employers from discriminating against an older worker in any aspect of employment, including firing, hiring, pay, job assignments, promotions, layoffs, training, benefits, and any other term or condition of employment.

In 1990, Congress passed the second law, the Older Workers Benefit Protection Act (OWBPA), which amends the ADEA and protects older workers who have been fired. Under the OWBPA, it is illegal for employers to require older workers to sign a waiver of their rights to sue for age discrimination. Under the OWBPA:

• Older workers must be given at least 21 days to decide whether to sign a waiver.
• The waiver has to be written in understandable language.
• The employer must offer something of value over and above what is already owed, such as severance pay, in exchange for a signature. 

The OWBPA also prohibits age discrimination in benefits. This law generally requires employers to provide equal benefits to older and younger workers. The law applies to health insurance, life insurance, disability benefits, and retirement plans.

Age Discrimination in Hiring and Other Practices

It’s important for older workers to recognize other aspects of the ADEA to make sure they are not being discriminated against for their age. These include

• Employment notices or ads – it’s generally illegal for employment ads to specify age preferences or limitations. An ad that seeks applicants “ages 25 to 35,” for example, would be considered unlawful under the ADEA. On the flip side, it’s okay for a business to specify a preference for candidates who are retirees or who are over age 50.
• Bonafide occupational qualification (BFOQ) – a BFOQ means that an age limitation is necessary for a person to perform the duties of a job is. It is generally lawful. An example of a BFOQ would be a production company seeking an actor of a particular age to play a teenager.
• Harassment – ADEA prohibits the harassment of an individual because they are age 40 or older. This can include offensive remarks about a person’s age. If the remarks create a hostile or offensive work environment, it violates the ADEA. The harasser can be a supervisor, co-worker, or even a contract employee.
• Employment policies and practices– an employment practice can be considered illegal under ADEA if it has a negative impact on employees or applicants age 40 or older– even if the practice is equally applied to all employees or job applicants. For example, a general criterion such as flexibility could be subject to age-based stereotyping, according to the Equal Employment Opportunity Commission (EEOC).

If you believe you were terminated or discriminated against because of your age, we might be able to help you seek the compensation you deserve. Contact us to discuss the specifics of your situation.