While no employee should be subject to discrimination, there are misconceptions about certain discrimination laws that can lead to problems, especially in less common types such as age discrimination. If you believe you have been the victim of employment discrimination, you should be aware of what is truth and what is myth.
Myth: The Age Discrimination in Employment Act (ADEA) prohibits all age discrimination.
Fact: South Carolina uses the ADEA’s tenets in adjudicating alleged employment discrimination cases within the state. It is possible in some instances to discriminate legally against workers over the age of 40, according to case precedent. The most common time when this occurs is if your job entails difficult or dangerous work, as a reasonable case can often be made that you have grown unable to perform a high-risk job as competently as you might have at a younger age.
Myth: The ADEA protects all workers over a certain age, regardless of profession or employer.
Fact: The ADEA only applies to ‘covered’ employers, defined as any private employer that has 20 or more employees for at least 20 weeks of the year, in addition to federal government agencies. Some state organs are included as well. Thus, if you work for a very small company, you may not bring suit under the ADEA because it does not apply to your employer’s operations. The rationale is that to demand the smallest businesses to comply would be cost prohibitive to many.
Myth: Even if you are both over 40 years of age, you cannot be passed over or mistreated in favor of an older worker, due to public policy.
Fact: There is no public policy banning preference for older workers over younger workers, regardless of age. Preferential treatment can happen between coworkers, and even if both are over 40, it is not actionable except in rare circumstances.
Myth: If a rule affects older workers disproportionately, it’s okay as long as it was not intended to do so.
Fact: The Equal Employment Opportunity Commission (EEOC) authored a rule in 2012 to amend the ADEA, which states explicitly that if a rule has a negative effect on older workers, it may be against the law. The rationale is that discriminatory acts are against the law, regardless of whether they are discriminatory in practice or as written. For example, before the legalization of same-sex marriage, many laws that conferred benefits on “spouses” only were held up as discriminatory—because legally, a spouse is distinct from a partner, and same-sex couples could not marry. Just because these laws were almost never written in a discriminatory manner did not lessen the impact on same-sex couples.
Ask A Knowledgeable Attorney
It can seem like an insurmountable task to stand up for your rights, especially if you have been in the workforce for a very long time. Finding a knowledgeable discrimination attorney can help make things easier. Attorney A. Christopher Potts and his Charleston employment discrimination law firm stand ready to help answer any questions you might have about age discrimination or any other type of unequal treatment you might be experiencing.
Contact us today to set up an initial consultation.