The federal Age Discrimination in Employment Act is a comprehensive law that protects U.S. workers age 40 years and older from discrimination. Importantly, the ADEA forbids employers from direct discrimination such as forcing older employees into retirement. The ADEA also protects older workers indirectly, though, by prohibiting employment policies and practices that have a disproportionate effect on older workers.
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The U.S. Congress enacted the ADEA in 1967. Later, in 1990, the U.S. Congress amended the ADEA by enacting the Older Workers Benefit Protection Act. Collectively, these two acts now provide comprehensive protection for older employees from both direct and indirect discrimination.
An employer who engages in either direct or indirect age discrimination will suffer serious civil penalties. For example, if an employer discriminates against an employee on the basis of age, the employee has the right to sue the employer to recover money damages. The amount of damages can vary, but often includes compensatory damages designed to replace income or benefits lost because of the discrimination, damages designed to compensate the employee for damaged reputation and damaged psyche, and sometimes punitive damages designed to punish the discriminating employer.
Direct discrimination is easy to spot because the employee suffers an obvious adverse employment action. Direct discrimination includes such actions as refusing to hire or promote because of age, firing because of age, and denying benefits because of age. With direct discrimination, claims are easy to estimate; you generally just calculate the amount of money the employee lost because of the discrimination. For example, if an employee is fired because of age, the damages should equal the lost wages during the employee's period of unemployment.
Indirect discrimination is more subtle than direct discrimination, but in the eyes of the law, is equally illegal. Indirect discrimination occurs when an employer maintains a hostile work environment for older workers. Many people refer to this as harassment, and it includes disrespectful comments and gestures, as well as unfair terms and conditions of employment. Indirect discrimination can also occur from employment policies and procedures, such as a drug testing policy that requires older workers to submit to annual drug tests while younger workers need only submit every two years.
The best way for an employer to avoid directly or indirectly discriminating on the basis of age is to adopt policies and procedures that do not take age into account. Hiring policies should disregard age. Promotion policies and decisions should disregard age. Employee procedures should apply consistently to all age groups. An employer should simply make all employment decisions on the basis of legitimate business needs and goals, and not based on age in any respect.
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