Can a business discriminate against older employees due to coronavirus concerns?

No, an employer cannot discriminate against older employees due to coronavirus concerns. This means that employers can’t fire, refuse to rehire, or force older employees into jobs with less pay or responsibility. Employers also can’t force older employees to work from home merely because the employee’s age makes him or her more susceptible to the coronavirus.

Employers may not engage in practices that treat older workers differently from younger workers, including requiring older workers to go on involuntary leave or engage in safety precautions that are not required of other employees.  Employees 40 years old and older are protected from this type of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA).

Employers across the country are reeling from disruptions in their workforces caused by the COVID-19 pandemic and stay-at-home orders.  The CDC has identified people who are 65 years and older as being at a high-risk for severe illness from COVID-19.  In order to minimize future disruptions in the workplace, employers will likely attempt to reduce the number of older employees the CDC says are most at risk.  The ADEA bans this type of discrimination, and older employees who experience such discrimination can sue their employers to recover substantial amounts of money.

 What is the ADEA?

The ADEA is a federal law which prohibits employers from discriminating against employees 40 years or older with respect to any term or condition of employment.  An employer may not discriminate with regard to hiring, firing, promoting, terminating, or compensating a job applicant or employee.

The law also makes it unlawful to harass older workers because of their age, and it prohibits retaliation against an employee who opposes employment practices that discriminate based on age. This means that an employer cannot retaliate against an older worker who accuses the employer of age discrimination.

Who is protected by the ADEA?

The ADEA protects employees 40 years and older from age discrimination, but it only applies to employers with 20 or more employees.  In addition to private businesses, the ADEA also applies to local, state, and federal governments.

It should be noted that state and local laws may provide broader protections to workers than the ADEA.  For this reason, employees who feel they have been discriminated against on the basis of age should also look to state and local laws for protection.

While the ADEA prohibits any unequal treatment that negatively affects older employees, it makes an exception if the employer can show a “bona fide occupational qualification.”  This means that an employer can only treat older workers differently when an age limitation is necessary to the performance of the job (e.g., pilots and bus drivers).  For most employees, this exception does not apply.

What types of age discrimination are prohibited under the ADEA?

As the COVID-19 pandemic subsides and stay-at-home orders are lifted, employers will likely be tempted to prevent further disruption in the workplace by reducing the number of employees who are 65 and older.  Some forms of discrimination may be obvious, such as banning older employees from the office and forcing them to telework.  Employers may also require older employees to take involuntary leave to keep them out of the workplace.

The Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing federal discrimination laws, recently issued guidance on these discriminatory practices.  In its guidance, the EEOC made clear that the ADEA prohibits employers from involuntarily excluding employees who are 65 and older from the workplace, even if the employer does so for “benevolent reasons.”  In other words, employers cannot bar older employees from the workplace simply due to the higher risk of severe illness from the coronavirus.

Employers may also engage in less obvious forms of discrimination which are designed to force older employees to quit or retire.  While this type of subtle discrimination can come in many forms, some employers will likely require older employees to undergo safety precautions that are not required of younger employees.  This may include moving an older employee’s workspace to a more remote location or requiring older employees to interact with other employees over the phone or email.  Employers may also require older employees to wear face masks and gloves while at work or undergo testing to see if they have the coronavirus or antibodies to the coronavirus.  If younger workers are treated differently, the employer would likely be violating the older employee’s rights under the ADEA.

Discrimination in the workplace will take on many forms following the coronavirus pandemic.  An employee who feels that he or she is being treated differently due to age, should contact an employment law attorney to determine if the treatment is in fact discrimination.

What if my employer has discriminated against me due to my age?

The ADEA may allow you to file a lawsuit against your employer and recover a significant amount of money for the harm the employer caused.  An employee who believes that he or she has been mistreated should contact an experienced employment law attorney.  An attorney can assess the facts of your case and determine if your employer has violated the ADEA.

If your attorney agrees that your rights were violated, your attorney will file a charge of discrimination with the EEOC.  The EEOC will investigate your case and then decide if it will intervene in the case or issue a right to sue letter.  If a right to sue letter is issued, you can then file a lawsuit against the employer in federal court.

In many cases, an age discrimination case can be successfully resolved before filing a claim with the EEOC or going to court.  Contact our firm now if you believe that an employer discriminated against you due to concerns about your age and your susceptibility to the coronavirus.


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