Employment Lawyer Blog

Here is a brief primer on age discrimination laws in the United States and some facts about how these laws work.

1. The Age Discrimination in Employment Act of 1967 -- also known as the ADEA, this law shields employees and job applicants aged 40 years old and older from being discriminated against in "hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment." Not all applicants or employees are protected by this act. The Equal Employment Opportunity Commission (EEOC), a federal agency, oversees enforcement of the ADEA.
2. The Age Discrimination Act of 1975 -- outlaws discrimination 'on the basis of age in programs and activities receiving federal financial assistance.' It applies to people of all ages and does allow certain distinctions and 'factors other than age' to be used to make decisions. The Civil Rights Center enforces this act.
3. The Older Workers Benefit Protection Act of 1990 -- This changed the ADEA to bar employers from refusing to pay out benefits to certain older workers.
4. Three key federal regulations also often have bearing on age discrimination cases, according to the Department of Labor's website. These include:
• 29 CFR Part 37: This governs 'the implementation of the non discrimination and equal opportunity provisions of the workforce investment act'
• 27 CFR Part 1625: This interprets aspects of the ADEA.
• 29 CFR Part 1626: This discusses the procedures that govern the Age Discrimination Act of 1975.

Other key points:

• In general, an employer may not use age limitations or preferences in advertisements unless there are so called "bona fide occupational qualifications."

• Employers may ask a job applicant for his or her age or date of birth, but he or she can only do so for purposes that are not prohibited by the Age Discrimination in Employment Act.

• Employees may waive rights to claims under this Act, but the terms of such waivers are strict. For instance, the waiver has to be in writing, and it must be 'in exchange for valuable consideration.'

• Employers may not retaliate against employees: for filing an age discrimination complaint; for testifying on behalf of another employee in an ADEA case; or for helping out with an investigation or with litigation pursuant to the ADEA.

For legal help with your age discrimination, harassment, or retaliation case, connect with the attorneys here at Joseph, Herzfeld, Hester, and Kirschenbaum. Our highly credentialed and results-oriented team can provide a free, no obligation consultation regarding your matter. Phone us now at (866) 348-7394, or explore our resources, philosophy, and process at www.jhllp.com.

On Tuesday, November 10, 2009, the Salt Lake City, Utah City Council passed an ordinance banning discrimination based on sexual orientation in employment and housing. The seven member Council unanimously passed the ordinance, which makes it illegal for employers or landlords to discriminate against individuals on the basis of their sexual orientation. Given that the Church of Latter-Day Saints' (LDS) elders eagerly backed California's Proposition 8 last November -- which banned gay marriage in California -- the sudden support for gay rights has been viewed as a shocking turnaround.

Although progressive activists in California and Utah alike hailed the Church's support of these anti-discrimination measures, some have wondered whether the shifting stance reflects a change of a philosophy or a calculated political decision designed to appease moderates who were turned off by the Church's anti-gay marriage crusade in 2008.

The ordinance only applies to Salt Lake City -- and not to the state of Utah as a whole -- but it reflects similar ordinances passed in dozens of cities across the nation. It may portend a growing intolerance of discrimination towards gays, lesbians, bisexuals, and transgendered individuals. The ordinance will go into effect in April 2010.

Likely, the Church's decision reflects a kind of split thinking that many conservatives have about the subject of equality for people of different sexual orientations. On the one hand, the LDS and other conservative groups remain unified in their opposition to gay marriage: witness the recent defeat of a pro gay marriage bill in Maine in the November 2009 elections, and consider the Church's statement reaffirming its commitment to 'defending the bedrock foundation of marriage between a man and a woman.'

On the other hand, there simultaneously appears to be a trend towards recognizing the unfairness of employment, harassment and housing discrimination against gays and lesbians. How this cognitive dissonance plays out remains to be seen.

If you believe that you or a friend or a loved one has been the victim of discrimination based on sexual orientation, the attorneys here at Joseph, Herzfeld, Hester, and Kirschenbaum can help. Connect with our legal associates right now by dialing (866) 348-7394, or learn more about our firm at www.jhllp.com.

Workplace harassment, discrimination, and retaliation claims can drain the time and energy of small business owners. No employer wants to deal with a contentious lawsuit. But when owners and managers don't understand their legal responsibilities, problems can emerge and compromise even healthy and functional workplaces. So what are some behaviors to avoid when cultivating a respectful, harmonious work environment?

1. Distributing workload unfairly among employees. Favoritism can leave 'unfavored' workers feeling frustrated, out of the loop, and marginalized. Conversely, a favored employee may likewise feel uncomfortable, particularly if the favoritism could be construed as unwanted flirtation.

2. Not respecting the privacy of employees. For a good primer about how NOT to behave as a manager of a small business, watch the antics of the fictional employer Michael Scott on NBC's The Office. Scott regularly engages in behaviors that would - in the real world - be construed as creating a hostile work environment.

3. Failing to document events. If an employee complains to you about the behavior of a colleague, for instance, take notes and keep these notes on file. If you are confused about how to process a complaint, contact your human resources department or even a government agency such as the EEOC. By keeping careful track of complaints and official company responses, you can hopefully resolve employee issues faster and more efficiently and thus protect everyone's rights.

4. Maintaining a biased promotion and firing policy. Whether the economy expands or contracts, employers must constantly reshuffle their human resources decks. To avoid giving the appearance of impropriety to any hiring or firing decision, maintain clear, realistic, and legal policies regarding your HR decisions. Your employees should understand your decision-making criteria. Above all, practice empathy!

5. Failing to pay attention to the demeanor of employees and to the general attitude of your workers. Gauge the esprit d'corps of your employees carefully and methodically. If even one person on your team seems uncomfortable, investigate carefully and mindfully. Be on the look out for signs of bullying, intimidation, inappropriate humor, and illegal behaviors (like drug use at work).

6. Allowing the office to get messy. A work environment that's not clean, tidy and attractive can corrode morale. This can create stresses between co-workers and even contaminate relationships with clients. Ensure that the physical space in which you and your employees inhabit meets strong standards of hygiene.

For help assessing whether you may have a legally actionable employment discrimination, harassment, or retaliation case, talk to the accomplished lawyers here at Joseph, Herzfeld, Hester & Kirschenbaum at (866) 348-7394 (you can also find out more at www.jhllp.com). Our expert litigators can help you determine your next actions. Call today to get the help you deserve.

Prior to filing an employment discrimination, harassment, or retaliation claim, a claimant must assemble a strong evidence-based case. Thus, it's useful to review precisely what constitutes a violation of workplace law and what's just annoying behavior.

Federal law prohibits discrimination based on a variety of factors, including religion, race, sex, national origin, age, and sexual orientation. However, the law does not prohibit all forms of unpleasant behavior or speech. For instance, the annoying contact has to be 'pervasive' and it has to be significant enough to be construed as creating a hostile work environment.

What kinds of actions might be impermissible?

• Coworker repeatedly sends you sexually suggestive emails or pictures after you've requested him to stop.
• New boss makes racist or sexist remarks to subordinates; and uses "loaded" terms to describe someone's ethnicity, gender identity or ancestry.
• A coworker inappropriately touches or threatens to touch you.

Isolated incidents may not be actionable. Not all teasing will be considered harassment. Certain casual but offensive comments -- which are not intended to be heard by others -- may also not be actionable. Private remarks made on blogs or on social network sites like MySpace and Facebook may or may not constitute a problem.

Legal scholars hotly debate many of these issues. At precisely what point do free speech and privacy rights trump the rights of employees to work in an environment free of teasing, tormenting, and gossip?

Harassing contact must be 'unwelcomed.' For instance, if your boss flirts with you; and you respond by returning the flirtation and perhaps even initiating a relationship, that may not be considered harassment, although the legal issues that can crop up when a boss and subordinate start dating can get quite complicated.

If you or a family member or friend has been victimized by harassment, discrimination, retaliation, or other problems stemming from a hostile work environment, and you want sound advice about whether or not legal action may be a solid option, connect today with the attorneys here at Joseph, Herzfeld, Hester & Kirschenbaum. Your consultation with us is free and confidential, and you can call us any time at our toll free hotline, (866) 348-7394, or visit us online at www.jhllp.com.