American Journal of Nursing 2000 March Volume 100, Issue 3

If You're Replaced by a Younger Nurse

You have recourse against age discrimination; know the laws that protect you.

A.
The Age Discrimination in Employment Act of 1967 (ADEA) protects those 40 and older by prohibiting employers from discriminating on the basis of age in all aspects of employment including compensation, terms, conditions, and privileges. Employers may not use age to limit, segregate, or classify people in any way that would deprive or tend to deprive them of employment opportunities or otherwise adversely affect their status. Besides discharging and failing or refusing to hire, employers are also prohibited by the ADEA from denying benefits to, harassing, and retaliating against workers over 40 for opposing a prohibited practice, filing a charge, or participating or testifying in an investigation, proceeding, or litigation under the act. Furthermore, employers aren’t permitted to refer to age in advertisements.

The ADEA applies to private employers with 20 or more employees; state, local and federal government employers; labor organizations; and employment agencies.

If you believe you’ve been discriminated against, file a written complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days of the incident (in certain cases, this may be extended to 300 days). The charge should identify your employer and describe the conduct you believe to be discriminatory. After you file, the EEOC has 60 days to investigate, resolve the charge, and notify you of its decision. If the EEOC hasn’t resolved the charge within 60 days, then you may file a lawsuit in federal district court under the provisions of the ADEA. However, should the EEOC commence action on your behalf, your right to bring private action ceases.

If you win a discrimination claim under the ADEA, you may be entitled to permanent injunctions, reinstatement or promotion, and monetary damages. In order to prove an intentional age discrimination claim, you must establish

• your age (40 years or older).

• your qualifications for the position in question.

• that you were adversely affected.

• that someone younger, with similar or lesser qualifications, received the position (or job benefit) denied to you.

However, as a result of the Older Workers Benefit Protection Act (OWBPA) of 1990, an employer may legally discharge, or refuse to hire, someone 40 or older if the decision is not determined on the basis of age. For instance, a skills test given to all applicants during an employment screening may be used to determine an individual’s qualifications for a job. The ADEA also permits employers to take certain discriminatory actions based on age if they involve “bona fide occupation qualifications” and are necessary to an enterprise’s operation. The employer must show a factual basis, such as medical evidence or validating studies, for believing that all or most employees older than a determined age lack the necessary qualifications for the position or must prove that there’s no practical way to test the employees individually to determine if each has the necessary qualifications. Most such issues pertain to the maximal hiring or mandatory retirement ages for jobs involving the public’s safety, such as police officers and pilots.

Finally, the OWBPA also restricts an employer’s imposition of mandatory early retirement and requires that all releases and waivers of ADEA claims comply with certain restrictions. You may want to consult an attorney should you encounter these issues. To find out more about your rights under the ADEA, contact the EEOC office closest to you or visit the agency’s Web site at www.eeoc.gov.