Age discrimination is unfortunately common in the workplace. According to studies from AARP, 78 percent of workers 45 and older have seen or experienced age discrimination at their jobs. More than half of longtime employees aged 50 and older are forced to leave positions before they would voluntarily choose to do so. Once this happens, only 10 percent of them ever regain their previous economic status, according to a Denver Post opinion piece.
“We have a paradox going on in Colorado: employers are desperately looking for talent, and older adults are desperately looking for work. But workforce age discrimination makes it difficult for older Coloradans to fully contribute to the labor market.” — The Denver Post, 1/18/2022
Fortunately, federal and state laws protect working Coloradans from age discrimination. Our article provides an overview of those laws and how employees can use them to fight back against discriminatory employers.
Table of Contents
What Is Age Discrimination?
Types of Age Discrimination in the Workplace
Examples of Workplace Age Discrimination
Proving Age Discrimination in the Workplace
What the Law Says
The Age Discrimination Complaint Process
Pursuing Your Age Discrimination Claim in Court
Remedies for Age Discrimination in the Workplace
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Our Employment Law Attorneys Fight Age Discrimination
Coloradans — like others in the United States and around the world — are living longer, healthier lives. Communities and workplaces stand to greatly benefit from the experience older individuals have developed over the years. Unfortunately, age discrimination can derail that. If you feel you are a victim of age discrimination in the workplace, you should immediately enlist the services of Robinson & Henry’s Employment Law Team. Call 303-688-0944 today to begin your free case assessment.
What is Age Discrimination?
Denying someone who is 40 years old or older a promotion, a job, or some other kind of work opportunity due to his or her age is considered age discrimination. Harassing older workers because of their age is also illegal. The law requires employers to make decisions based on a worker’s merit and skill, not his or her age.
Employers that engage in these types of discriminatory practices at any stage of employment, including hiring, firing, promotions, and retirement are breaking the law. 29 U.S. Code Service § 623
Types of Age Discrimination in the Workplace
Age discrimination can take many forms. However, most cases fall into the following two categories: disparate treatment and disparate impact.
Disparate treatment occurs when an employer intentionally singles out a worker or treats them less favorably based on a protected characteristic, like age.
Disparate treatment is generally the more blatant form of age discrimination. An example is an employer laying off a 55-year-old worker and replacing her with someone who is 25.
If you believe your employer has treated you differently because of your age, you will need to be able to prove intentional discrimination. In disparate treatment cases, you’ll have to show that the negative action by your employer would not have happened to you if not for your age.
Disparate impact refers to an employment practice or policy that is neutral on the surface but nevertheless has a disproportionate impact on employees who are 40 years old or older. A policy can have a discriminatory impact even if it was not created with that purpose in mind.
These types of cases often call for statistical evidence that shows, for instance, the employer’s practice results in a statistical disparity between workers of different ages.
Here’s an example:
An employer’s hiring test disproportionately weeds out older people. Now, just because the test seems to screen for age does not automatically mean it is discriminatory. The employer may be able to show that its selection process is needed to ensure on-the-job safety or that the test evaluates an applicant’s skill set and ability.
Disparate impact can be difficult to prove, so it’s important to work with an employment lawyer who knows how to collect the evidence you need to establish a strong argument.
Examples of Workplace Age Discrimination
Imagine you’re 57 years old. You decide to retire — not because you’re necessarily ready, but because your employer has made your work environment so intolerable that you see no other option. This is called constructive discharge:
[A] constructive discharge occurs when an employer makes or allows the employee’s working conditions, as a result of discrimination by the employer, to become so intolerable that the employee has no other choice but to quit.
Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d 402, 406 (Colo. App. 1993)
In this type of case, you’ll have to show that “a reasonable employee would view the working conditions as intolerable and would feel compelled to resign.”
Sometimes employers must lay off employees due to economic constraints. For instance, a car engine production plant lays off workers because a downturn in the economy has resulted in fewer people buying cars. This is known as a reduction in force.
Terminating an employee through a reduction-in-force does not insulate employers from liability for age discrimination or other employment discrimination.
You may have a viable age discrimination claim if you were laid off due to a protected characteristic, such as your age, while younger, similarly situated employees were retained.
Proving Age Discrimination in the Workplace
As with most lawsuits, the burden of proof is placed on you as the plaintiff. You must establish a prima facie case of age discrimination. Prima facie, Latin for at first sight, means the legal claim has enough evidence to proceed to trial or judgment.
A prima facie workplace age discrimination claim requires you to show the following four elements:
- you were at least 40 years old
- your work performance was satisfactory
- you were discharged despite the adequacy of your work
- your position was filled by a younger employee
Proving Age Discrimination in Reduction-in-Force Cases
In a reduction-in-force age discrimination case, you are not required to prove that you were directly replaced by a substantially younger employee. Instead, you’ll have to show that younger employees were retained while older employees were laid off.
Valdez v. Cantor, 994 P.2d 483, 486 (Colo. App. 1999)
Proving Age Discrimination When Your Replacement is Similarly Situated
It’s important to note that an age discrimination claim can still be valid even if the person you were replaced by is similarly situated. For example, let’s say 62-year-old Gail is replaced by 43-year-old Josh. Gail and Josh are similarly situated due to their being in a protected class; they’re both over 40. Despite being similarly situated, Gail may still have a viable age discrimination claim because Josh is substantially younger than Gail.
Now, if you’re a 41-year-old employee who is replaced by someone who’s 39, you’ll likely have a difficult time establishing an age discrimination claim like a case in Mesa County:
A Colorado man’s employer asked him to resign. When he refused, he was terminated and replaced by an employee less than three years his junior. The man filed an age discrimination claim against his former employer, but he was unsuccessful at trial. He appealed. The Colorado Court of Appeals found no age discrimination:
Your Employer’s Rebuttal
Let’s say you have successfully proven the four elements of age discrimination mentioned above. Your employer has the opportunity to provide a rebuttal to your claims.
Your employer can dispute your claim by showing a legitimate, non-discriminatory reason for any adverse employment actions. In other words, your employer demonstrates that their decision was based on reasonable factors other than age.
It is still possible for your claim to prevail by establishing that your employer’s reason was merely a pretext for age discrimination. Brawner-Ahlstrom v. Husson, 969 P.2d 738, 740 (Colo. App. 1998)
Proving Pretext in Age Discrimination Cases
A pretext is a false reason given to justify a course of action. In other words, your employer’s stated reason for the adverse employment action was not the real reason for the decision. Instead, the reason masks the employer’s actual intent.
So, how do you prove pretext? To find the answer, we look to Colorado case law.
In the 2008 Colorado District Court case Jackson v. City & County of Denver, the district court outlines how pretext is typically shown through evidence that an employer:
- gave a false reason for the adverse action
- acted contrary to a written company policy prescribing the action to be taken under the circumstances
- acted contrary to an unwritten policy or practice when making the adverse decision
Jackson v. City & Cty. of Denver
A Deeper Look at Federal and State Discrimination Laws
Age Discrimination in Employment Act
The federal Age Discrimination in Employment Act was enacted in 1967 “to promote the employment of older persons based on their ability rather than age.”
The Act covers private employers who have 20 or more workers in each of 20 or more calendar weeks in the current or preceding calendar year.
Even employers with fewer than 20 employees may be covered if:
- the employer acted jointly with a parent, subsidiary, or affiliated corporation,
- the total number of employees at both companies is 20 or more, and
- the two companies have acted as a joint enterprise.
In addition to private employers, the Act also covers federal, state, and local governments, labor organizations, and employment agencies.
Older Workers Benefit Protection Act
In 1990, Congress amended the Age Discrimination in Employment Act to include the Older Workers Benefit Protection Act. This federal law prohibits age discrimination in the form of fringe benefits, such as life insurance, health insurance, disability benefits, pensions, and retirement benefits.
In most situations, employers must provide equal benefits to older and younger workers. For some types of benefits, however, employers can meet this non-discrimination requirement by spending the same amount on the benefit provided to each group — even if older workers receive lesser benefits as a result.
There are some circumstances where employers are allowed to provide lesser benefits to older workers. These circumstances only apply if the older workers receive additional benefits (from the employer or the government) that make up the difference.
Colorado Anti-Discrimination Act
Age discrimination is also prohibited under Colorado’s Anti-Discrimination Act. C.R.S. § 24-34-402
This anti-discrimination law prohibits age discrimination in the workplace regardless of employer size. Even employers who have fewer than 20 employees and are thus exempt from federal law must comply with state law.
Early Retirement and Severance Agreement Waivers
Older workers who are offered early retirement agreements may find included in the paperwork a waiver that releases the employer from all future legal claims. By signing the waiver, the employee agrees not to sue the employer for, say, age discrimination. In return for signing the waiver, the employer gives the employee an incentive to leave voluntarily. One example is a severance package that exceeds the company’s standard policy.
These waivers are legal as long as they follow certain rules required by The Older Workers Benefit Protection Act.
Your employer must give you at least 21 days to decide whether to sign a waiver that has been presented to you individually. If the waiver is given to a group of employees, each employee must be given at least 45 days to decide whether to sign.
In either case, you have seven days after agreeing to the waiver to revoke your decision.
Additional protections include:
- The waiver’s language must be understandable to the average person eligible for the program in which the waiver is being used.
- The waiver may not cover any rights or claims that you discover are available after you sign it. It must also specify that it covers your rights under the ADEA.
- Your employer must offer you something of value — over and above what is already owed to you — in exchange for your signature on the waiver.
- Your employer must advise you in writing of your right to consult an attorney before signing the waiver.
Restrictions for Employee Groups
Sometimes your employer will make this offer to a group of employees — as part of an early retirement incentive program, for example.
In this case, your employer must inform you in writing of the following:
- how the class of employees is defined
- the job titles and ages of all the employees to whom the offer is being made
- the ages of all the employees in the same job classification to whom the offer is not being made
The Age Discrimination Complaint Process
Filing the Complaint
Your age discrimination claim can be filed either with the Colorado Civil Rights Division (CCRD) or the Equal Employment Opportunity Commission, the federal administrative agency commonly called the EEOC. The two agencies have a work-sharing agreement, which simply means they cooperate with each other to process claims.
Filing a claim with both agencies is unnecessary as long as you indicate to one of the agencies that you want it to cross-file the claim with the other agency.
Colorado’s anti-discrimination law covers employers of any size. If you want to file an age discrimination claim with the EEOC, your employer must have 20 or more employees.
Complaint Filing Deadlines
To preserve your age discrimination claim under state law, you must file with the CCRD, or cross-file with the EEOC, within 180 days of the date you believe you were discriminated against.
To preserve your age discrimination claim under federal law, you must file with the EEOC, or cross-file with the state agency, within 300 days of the date you believe you were discriminated against.
What Happens After I File an Age Discrimination Claim?
When your claim is filed, the EEOC will give you a copy of it with what’s called your charge number. This is just your claim’s identifying number. Within 10 days, the EEOC will also send a notice and a copy of the claim to the employer.
At this point, the EEOC may decide to do one of the following:
- Ask you and the employer to take part in mediation.
- Request the employer to provide a written answer to your claim and answer questions about it. Your charge will then be given to an investigator.
- Dismiss your claim if the EEOC does not have jurisdiction or if it was not filed in time.
If the EEOC decides to investigate your claim, they may interview witnesses and gather documents. Once the investigation is complete, you and your employer will be notified of the results.
If the EEOC determines that age discrimination did not occur, you will receive a notice of your right to sue. This notice gives you permission to file a lawsuit in a court of law.
If the EEOC determines that discrimination occurred, they will try to reach a voluntary settlement with your employer.
Filing an Age Discrimination Lawsuit
If your case is not resolved by an administrative agency, you will need to pursue your claim in court.
You cannot file a federal workplace age discrimination case in court without first going to the EEOC and having the agency dismiss your claim. This process is called exhausting your administrative remedies. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the Colorado Civil Rights Division.
Because the Colorado Anti-Discrimination Act places limits on how much you can receive in damages, many Colorado attorneys choose to file employment discrimination cases in federal court using federal law.
Before you can file a claim in federal court, the EEOC must first issue a document known as dismissal and notice of rights or notice of right to sue. This document gives you permission to move forward with your lawsuit.
Deadlines to File Your Age Discrimination Lawsuit
The Age Discrimination in Employment Act sets a two-year statute of limitations for basic or non-willful violations. Willful violations have a three-year statute of limitations. 29 U.S.C.S. § 255(a)
To establish a claim for willful discrimination, a court must additionally find that your employer either knew or showed reckless disregard for whether its conduct was prohibited by the ADEA. Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d 402, 405 (Colo. App. 1993)
Legal Remedies for Age Discrimination
There are several categories of damages available to employees who successfully sue their employers for age discrimination. The categories can vary under federal and state law, as well as from state to state.
Compensatory and punitive damages are allowed in Colorado race and gender discrimination cases, but not for age discrimination.
Lost Back Pay and Future Pay
Under the ADEA and the Colorado Anti-Discrimination Act, employees in age discrimination cases can be awarded damages for lost back pay from the discharge to the trial, and lost front pay from the trial onward.
A calculation of back pay should include your base salary amount and pay raises you reasonably expected to receive. It should also include sick leave, vacation pay, and other fringe benefits during the back pay period.
Front pay is simply money awarded for lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement. Abuan v. Level 3 Communs., Inc., 353 F.3d 1158, 1164 (10th Cir. 2003)
A front pay award must identify an end date. The court also must provide an explanation of that date that indicates that it is based on more than mere guesswork.
When awarding front pay, courts consider factors such as:
- work-life expectancy
- salary and benefits when your employment was terminated
- potential salary increases you could have received
- the availability of other work opportunities
- the period that it would take you to become re-employed
- the discounting of the award to net present value.
Craig v. O’Meara Ford Ctr., Inc., 2018 Colo. Dist. LEXIS 2213
Courts Prefer Reinstatement to Front Pay
Courts in the Tenth Circuit, which includes Colorado, generally prefer reinstatement to awarding front pay in age discrimination cases. Front pay is typically only awarded when:
- the employer is hostile
- an amicable working relationship is impossible, or
- animosity caused by the lawsuit has irreparably damaged the employer-employee relationship.
Both federal and Colorado laws allow you to recover liquidated damages up to twice your monetary damages in willful age discrimination cases.
Let’s look at an example of a Colorado court awarding liquidated damages in an age discrimination case.
Craig v. O’Meara Ford Center
Larry Craig was in his 50s when he was terminated from his job at an Adams County car dealership. Craig racked up many accolades during his 23-year tenure, including a three-time Employee of the Year award.
In August 2016, Craig and a younger employee were accused of violating the dealership’s “no side work” policy. Craig was fired, while the younger employee was merely suspended.
Craig sued his former employer for age discrimination in violation of the ADEA. A jury found in favor of Craig and awarded him $62,200 in back pay. Because the jury determined that the dealership had willfully violated the ADEA, that award was doubled to $124,400.
Find Out if You Have an Age Discrimination Case
People over 40 are a vital part of any workforce and deserve the same career opportunities afforded to their younger counterparts. If your employer has withheld those opportunities due to illegal age discrimination, the Robinson & Henry Employment Law Team is ready to fight for you. Call 303-688-0944 today to begin your free case assessment.