Age Discrimination
The Age Discrimination in Employment Act
Our federal employment attorneys are experts in age discrimination cases. The Age Discrimination in Employment Act (ADEA) prohibits federal agencies from discriminating against federal employees based on age and prohibits retaliation/reprisal for participation in protected activity.
The ADEA specifically states that it is unlawful to discriminate against people over 40 in hiring practices, employment opportunities, and wages. This act also applies to any federal employment unions that are held to similar standards by the ADEA.
In a fairly recent decision, Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882 (Apr. 6, 2020), the U.S. Supreme Court clarified that the provision of the ADEA applicable to federal government employees allows federal employees to sue for age discrimination when age bias taints the decision-making process, not merely when age is a “but for” factor in the employment decision, private sector employees must demonstrate. The Court said, however, that remedies including reinstatement, back-pay, and compensatory damages are available only to federal employees who establish “but for” causation.
Who is Covered Under the ADEA?
The ADEA does not apply to federal employees under age 40. An agency is allowed favor an older federal employee over a younger employee, even if both are 40 or older and it adversely affects a younger worker who is 40 or older. There can be discrimination when the aggrieved employee and the responsible management official who discriminated are both over 40.
The ADEA also prohibits retaliation against a federal employee who opposes employment practices that are discriminatory based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
Harassment Based on Age
The ADEA prohibits agency officials from harassing or creating a hostile work environment for a federal employee because of the employee’s age.
An example of illegal harassment based on age is repeated offensive or derogatory remarks about a federal employee’s age, e.g., comments that the employee must be ready for retirement. The law does not prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious.
The harasser can be the victim’s direct supervisor in the agency, a supervisor in another area, a co-worker, or someone not employed at the agency, like a client or customer. If the harassment is committed by someone who does not have direct authority over the employee, then the agency may only be liable if the employee complained about the harassment and the agency failed to take prompt remedial action.
Age Based Disparate Impact Claims
The EEOC held, in Brown v. Dep’t of Transp, EEOC Doc No. 03A50040 (2005), that federal employees may bring disparate impact claims under the ADEA. To establish such a claim, a federal employee must 1) identify the specific agency policy or practice challenged; 2) show statistical disparities in its application; and 3) show a link between the policy or practice and the disparity. Despite this, in DiCocco v. Garland, No. 20-1342 (November 17, 2021), the U.S. Court of Appeals for the Fourth Circuit held that the ADEA does not provide a disparate-impact cause of action for federal employees.
This decision created a circuit court split as both the 10th Circuit (in Lujan v. Walters, 813 F.2d 1051 (1987)) and the 9th Circuit (in Palmer v. United States, 794 F.2d 534 (1986)), have held that the ADEA provision applicable to federal employees prohibits any and all age discrimination. In light of this split, it seems likely that this issue may end up at the Supreme Court to resolve within the next few years.
Age Discrimination Lawyers You Can Trust
Age discrimination cases are often complex and confusing. Our team of Federal Employment attorneys are well-versed in the laws and regulations involved in these matters. Our age discrimination lawyers stand ready to fight for you. Contact us today!
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Frequently Asked Questions
Federal employees are protected from discrimination based on sex, gender, color, race, national origin, religion, age, and disability, and have the right to file an EEO complaint against their agency should they face discrimination. Federal employees also have the right to due process before being subjected to an adverse action.
Yes, federal employees can sue for discrimination, but first you must exhaust administrative remedies, which includes filing a formal complaint with your agency and letting 180 days pass. In many instances, federal employees elect to pursue their EEO complaints through the EEOC’s hearing process instead of filing a civil action.
Federal employees must initiate contact with an EEO Counselor within 45 days of any act of discrimination. After an informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which will permit you 15 days to do so.
Federal employees do not have the right to sue for wrongful termination the way private sector employees do, but most federal employees have the right to appeal a removal to the MSPB, which will adjudicate whether the Agency can sustain any charges raised against you.
Yes, most federal employees can file a complaint against their agency with the U.S. Office of Special Counsel (OSC) if they are facing whistleblower retaliation. If OSC does not accept your complaint for investigation and prosecution, OSC will issue you an Individual Right of Action (IRA) notice giving you the right to pursue corrective action at the MSPB. Federal employees do not have the right to sue in court under the Whistleblower Protection Act.