Florida Age Discrimination: Do you have a Valid Claim?

August 18, 2020

Hey, Floridians, here are some startling statistics:

  • The number of age-related discrimination charges filed with employers and the U.S. Equal Employment Opportunity Commission (EEOC) by workers who were over age 65 doubled from 1990 to 2017.
  • Almost half (44%) of employees said they or someone they know experienced age discrimination on the job.
  • At least 21% said that they themselves experienced age discrimination.
  • About 36% say that their age has kept them from getting a job since turning 40.

Plus, here’s one more: only 40% of those who experienced age discrimination filed a charge or complaint. That means there are a lot of incidents of age discrimination that go unreported. Many of these are in Florida.

What Is Age Discrimination?

The Florida Civil Rights Act states that it’s illegal for an employer to fire, refuse to hire, or otherwise discriminate against an individual based on age. The law gives older workers some other protections as well, including the following:

  • An employer (or employment agency) can’t engage in practices that result in an individual to not be hired on the basis of age;
  • An employer can’t restrict, segregate, or classify employees or job applicants for positions in a manner that would deprive them of employment opportunities or adversely affect their status as employees based on their age;
  • An employer, employment agency, labor organization, or any other related entities are prohibited from publishing any advertisements for employment that discriminate on the basis of age; and
  • A labor organization can’t exclude an individual from membership or in any manner discriminate because of age.

However, the Florida Civil Rights Act allows for a “bona fide occupational qualification” (BFOQ) which means that a specific type of employee may not be considered because of the job conditions are “reasonably necessary for the performance of the particular employment.” So, a discriminatory action based on age-related to a bona fide occupational qualification isn’t unlawful. For example, a church would be okay to require that its leader is of the same religion and denomination, and it wouldn’t be unreasonable for a movie producer to exclude 85-year-olds from the lead in a new Spiderman TV series.

What are the Age Discrimination Prohibitions under Federal Law?

The Age Discrimination in Employment Act (ADEA) is the federal statute similar to the Florida Civil Rights Act that protects older Americans.

The ADEA prohibits discrimination in any part of employment, such as hiring, firing, wages, work assignments, promotions, layoffs, job training, fringe benefits, and any other term or condition of employment.

It’s also a violation of the ADEA for an employer to retaliate against an individual for opposing employment practices that discriminate based on age or for an age discrimination claim under the ADEA.

There are a few differences in how the state and federal laws protect employees. Most significantly, the ADEA specifically protects those age 40 and older from employment discrimination based on age, and the ADEA applies to employers with 20 or more employees. The federal law applies to the federal government, state and local governments, and to private employers. The Florida Civil Rights Act applies to some smaller employers not covered by federal law for age discrimination—those businesses with at least 15 employees.

ADEA protections include the following:

Apprenticeship Programs. These programs—including joint labor-management apprenticeship programs—can’t discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are legal only if they’re in certain specific exception under the ADEA (or if the EEOC grants a specific exemption).

Job Notices and Advertisements. It’s unlawful for an employer to include age preferences, limitations, or specifications in job notices or advertisements. Although a job notice or ad can state an age limit, it’s only when age is shown to be a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business.

Pre-Employment Inquiries. Federal law doesn’t specifically prohibit an employer from inquiring about a job applicant’s age or date of birth. But this question may keep older workers from applying or may signal an employer’s possible motivations to discriminate based on age. As a result, requests for age information are reviewed closely to be certain that the question was made for a lawful purpose, and not one prohibited by the ADEA.

Benefits. The EEOC states that the Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. For example, if an employer offers a severance to an employee who is 40 or older, the employer must provide either a 21-day or 45-day review period if the employer wants the employee to waive his/her rights to bring a claim under the ADEA, as well as a 7-day revocation period after the employee signs the agreement.

Call a Tampa age discrimination lawyer at FGBO Law today.

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