As part of our ongoing series of posts intended to familiarize you with New York and Federal laws you must follow if you are running a business in New York, it is important to understand the way the New York law protects employees from age discrimination. Age discrimination is, in short, when an employer makes employment or management decisions based on an employee’s age and not on his or her job performance, skills or qualifications.
Employees are protected via multiple layers of laws and administrative bodies. Employees may be able to file an age discrimination suit at the U.S. federal, New York State and New York City level.
Scope of New York Discrimination Claims
New York age discrimination causes of action are not limited to hiring and firing. Claims for age discrimination can be based on age bias within the workplace (like passing over employees for promotion); failure to provide necessary training programs; and distribution of work to younger employees. Age discrimination can take many forms – a resistance to new processes, and a lack of aptitude for new technology are typically “code” for such behavior.
At the federal level, the law protects workers age 40 or older from age discrimination. If you work or apply for work at a company with 20 or more employees, the Age Discrimination in Employment Act (ADEA), generally, prohibits employers from basing decisions on hiring and firing based on age. Companies should note that employees can bring claims under ADEA not only for glaringly obvious terminations and decisions based upon age, but also neutral factors that resulted in a disproportionately high impact on older workers.
At the state and local levels, both the State of New York and New York City have passed human rights laws that take ADEA a step further. In New York, if you work or apply for work at a company that employs only four or more employees, employers are prohibited from basing employment decisions on age unless age is truly necessary for the specific position.
Employment Law Compliance Programs
So what is an employer to do? Especially in tough economic times, it is important to have an efficient and effective workforce. Employers considering workforce restructuring should weigh the risks of incurring employee claims and other potential liability. Evaluation of decisions must include whether the selection of these individuals can be justified by business necessity, or in the case of older workers, by reasonable factors other than age. We advise consulting with a New York employment attorney prior to laying off workers that may pose a litigation risk and creating an employment compliance program.