Age Discrimination is prohibited in the workplace. An employer cannot terminate, refuse to hire, or otherwise discriminate against an employee in any respect because of an employee's age. The Age Discrimination in Employment Act (ADEA) and the Pennsylvania Human Relations Act (PHRA) provide protections against employment discrimination for employees who are over the age of 40. A typical age discrimination case may involve an employee who is over 40 years of age who was treated differently in the workplace than a substantially younger employee. A claim may also involve two individuals over 40, such as someone over 60 years of age being treated differently than someone who is 45.

A plaintiff may support an inference of age discrimination in a number of ways, including the use of comparators (showing younger employees who were treated differently), statistics, evidence of similar age discrimination against other employees, or direct evidence (negative statements about an employee's age).

The law requires that an age discrimination plaintiff (employee who files a case) prove by a preponderance of the evidence, that age was the "but-for" cause of the termination of employment or other adverse employment action. A Plaintiff may prove age discrimination through what the law calls, "pretext." Under a Supreme Court case, McDonnell Douglas Corp. v. Green, there is a burden shifting test. First, the plaintiff must demonstrate a "prima facie case" of age discrimination. This means that the plaintiff must show: (1) the plaintiff is forty years of age or older; (2) the defendant took an adverse employment action against the plaintiff; (3) the plaintiff was qualified for the position in question; and (4) that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus, or that younger employees received comparatively more favorable treatment. Age discrimination case law recognizes that the requirements of a prima facie case are flexible and must be evaluated in light of the particular circumstances of the case before a court.

Once the plaintiff satisfies the prima facie case requirement, the burden of production shifts to the employer to identify what the law calls a, "legitimate non-discriminatory reason" for the adverse employment action. If the employer does so, the burden of production returns to the plaintiff to demonstrate that the employer's reason is only a pretext (questionable or flawed and really an attempt to cover up age discrimination).

In situations where an employer layoffs employees, Courts have held that a plaintiff alleging age discrimination in the layoff must only show that the employee was a member of the protected class (more than 40 years old) and that the employee was laid off from a job for which he was qualified while other substantially younger employees were treated more favorably.

Older Worker's Benefit Protection Act

Employees who are forty (40) years of age or more also are protected by the Older Worker's Benefit Protection Act (OWBPA) which forbids age as being used as the basis for any employment decision. The OWBPA mandates certain requirements to be included in Severance Agreements when an employer offers an employee something of value to sign a waiver or release of claims at the time employment is terminated.

When employers ask employees who are 40 years of age or older to sign a Severance Agreement and waive their rights to take any legal action, such as an age discrimination lawsuit, the OWBPA mandates that employers include certain language. Requirements of the OWBPA include:

o an employee must be provided twenty one (21) days to decide whether to waive rights; however, if the Agreement is offered to a group of employees, the employees must instead be provided a minimum of forty-five days (45) to decide whether sign the Agreement

• an employee must also be given seven (7) days to revoke the Agreement after signing
• the waiver of claims must be understandable so that the average eligible employee can easily understand the waiver
• the waiver of claims cannot apply to any rights or claims discovered after the agreement is signed
• the employer must offer something of value beyond which cannot just include what the employer already owes the employee
• the employer must provide written notice of the right to review the Agreement with an attorney before signing the Agreement
• in situations where an Agreement is offered to a certain class/group of employees, the employer must provide written notice as to how the class/group was defined; this notice must identify job titles and ages of those who received and did not receive the offer

The OWBPA is required to be strictly interpreted against an employer. Waivers which fail to comply with any of the requirements are void as a matter of law. In fact, an employee who has signed an invalid waiver maintains the right to file an age discrimination lawsuit and does not have to refund the severance received from an employer for signing an invalid waiver.

Age discrimination claims can be complex and often hard to recognize. Severance Agreements are legal documents in which you waive legal rights. We have handled numerous age discrimination cases and regularly consult with clients on proposed Severance Agreements. We are ready to assist. Call us today at 267-470-4742 or contact us online to discuss your legal options.