Age Discrimination in Employment Act (ADEA) prohibits covered employers from engaging in age discrimination in employment. The ADEA protects employees 40 and over. However, where there is a bona fide occupational reasonably necessary to the normal operations of your particular business, you may be allowed to discriminate based upon age.
This is where the help of Colorado employer defense lawyers can be useful.
As an employer, you want to ensure that all of your supervisors, manager and Human Relations (HR personnel are well trained and cognizant of the facts that can get you in trouble.
The U.S. Supreme Court has stated that the Age Discrimination in Employment Act forbids discriminatory preferences for the young over old. However, the Act does not prohibit favoring old over the young. See General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 1239 (2004).
In addition to prohibiting age discrimination, the Age Discrimination in Employment Act prohibits covered employees any retaliation that employers may impose if the employee (1) opposed any practice made in an unlawful employment practice by the Act; or makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding or hearing under the ADEA. See 29. USC Section 623(d).
What is the Age Discrimination in Employment Act (ADEA)?
Is age a protected class? The Colorado Age Discrimination in Employment Act protects against individuals 40 years or older. As an employer, you should also be aware that you may not show intra-class discrimination. An example may include an EEOC complaint where the employee alleges that you are favoring a 50-year –old employee over a 70-year old employee.
Under the Age Discrimination in Employment Act, no person can:
- Be forced to retire based on age.
- Not be refused to be hired based on age.
- Be refused a referral for work based on age
The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination.
Who Does the Age in Discrimination Employment Act Protect?
The Colorado Age Discrimination Act does not apply to all employees and employers. Generally, the Age Discrimination in Employment Act applies to:
- Workplaces with 20 or more employees.
- Federal employees, private sector employees, and labor union employees.
Individuals who are not protected by Age Discrimination in Employment Act include:
- State employees
- Those in high policy-making positions who receive $44,000 in annual retirement pension benefits
- Police and fire personnel, tenured university faculty, and certain federal employees
- People who hold jobs where age is important to the job
As a Colorado employer, you may discriminate against a member of the protected class in favor of an older member of the protected class. For employers that are government contractors with employees overseas, the Age Discrimination in Employment Act applies to foreign companies controlled by American employers. See 29 U.S.C. section 623 (h)(1).
Are You Liable as an Employer? The Age Discrimination in Employment Act applies to public and private employers who:
- Engage in an industry affecting commerce; and
- Have at least 20 employees
Age Discrimination & Work Situations: The law forbids discrimination when it comes to any aspect of Colorado employment laws or federal laws, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Age Discrimination & Harassment: It is unlawful to harass a person because of his or her age. Under the Colorado Age Discrimination Act, harassment can include, for example, offensive remarks about a person’s age.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile work environment or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Age Discrimination Act & Employment Policies/Practices: An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age(RFOA).
Colorado Anti Discrimination Act
The state recently amended the Colorado Anti-Discrimination Act (CADA) by passing the Sexual Orientation Employment Discrimination Act (SOEDA). CADA now prohibits discrimination based on a person’s sexual orientation, religion, disability, race, creed, color, sex, age, national origin or ancestry.
The statute makes it illegal for Colorado employers “to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation against” any member of the protected classes listed above.
CADA is Colorado’s version of the federal Civil Rights Act, Age Discrimination Act and the ADA all rolled into one. But unlike the federal anti-discrimination laws, which cover only employers with 15 or more employees, Colorado’s civil rights statute covers all employers regardless of size.
The Colorado Anti-Discrimination Act prohibits discrimination or harassment in the course of employment on the basis of age against individuals aged 40 to 70 (CO Rev. Stat. Sec. 24-34-401 et seq. ; 3 CO Code Regs. 708-1, Rule 40.2). Effective January 1, 2015, there is no upper age limit, and individuals who are at least 40 years of age are protected. The Act applies to all employers in the state. Under the Act, it is unlawful to:
- Refuse to hire or promote, discharge, harass during the course of employment, or discriminate in the compensation of any person because of age.
- Aid, compel, or coerce any discriminatory or unfair employment practice.
- Discriminate against any person who has opposed unlawful discrimination, filed a charge of discrimination, or testified, assisted, or participated in any investigation, proceeding, or hearing regarding a claim of discrimination.
- Deny participation in an apprenticeship training program, an on-the-job training program, or any other occupational instruction, training, or retraining program.
- Make any inquiry in connection with prospective employment that expresses a limitation, specification, or discrimination as to age, unless based on a BFOQ.
- Print or circulate any statement or advertisement for employment or application for employment that expresses a limitation, specification, or discrimination as to age, unless based on a bona fide occupational qualification (BFOQ).
- According to the Colorado Civil Rights Commission’s rules on age discrimination, it is unlawful for an employer to publish advertisements for employment using terms such as “young,” “recent college graduate,” or “retired person” (3 CO Code Regs. 708-1, Rule 40.3).
If you are a federal government contractor or a Colorado employer, you should seek legal help from experienced employment defense attorneys that understand the Age Discrimination Act and rules and that can defend your rights.
Call 1-866-601-5518 for immediate employer defense.