For older South Carolina employees, the prospect of illegal age discrimination will inevitably raise its head at some point. The EEOC reported in 2022 that 15% of total charges received involved allegations of age discrimination (nearly 11,000 total charges that year). So for a South Carolina employee facing age discrimination in terms of employment, what are that employee’s rights? And how can you fight back?
What is the ADEA?
Under the federal Age Discrimination in Employment Act (ADEA), covered employers cannot discrimination against an employee on the basis of age. The ADEA sets the age threshold at 40 years old, meaning that you must be at least 40 years of age in order to claim protection under the ADEA.
The ADEA has a slightly higher requirement of number of employees in order for the law to apply, as compared to the other federal anti-discrimination laws. So a South Carolina company would have to have at least 20 employees in order for the ADEA to protect older employees. If the company has fewer than 20 employees, then the employee cannot bring a claim for age discrimination and would need to seek a remedy from other legal claims. In contrast, Title VII of the Civil Rights Act, which covers color, sex, religion, and national origin, requires only 15 employees. The Americans with Disabilities Act (ADA) requires 15 employees. The Family and Medical Leave Act requires at least fifty.
If the employee is at least 40 and the company has the required 20 employees, then the company cannot discriminated against the employee on the basis of age.
Types of Age Discrimination in South Carolina
Age discrimination pops up in all aspects of the employment process. At the beginning of that process, older employees may have difficulty finding a job once the company learns the employee’s age. From what I’ve seen, the closer an employee is to retirement age, the harder it is to find a job, as companies may decide they don’t want to hire someone who may retire within a few years of coming on board. That’s a classic example of age discrimination, but it can be difficult to prove this type of failure to hire claim.
Another example is harassment based on age. Common examples of harassment are age-related jokes, frequent comments about an employee’s retirement plans, or just straight up nasty comments about how an employee is too old, slow, etc. to handle the work.
Another common example is when an employee is terminated abruptly without sufficient cause (or for altogether false reasons) and replaced by a younger, less experienced employee. When a company claims that the older employee was laid off in a reduction in force scenario and then immediately refills the position, that’s a pretty good basis for an age discrimination claim. Companies sometimes try to hide that fact by changing the job title in name only, but then fail to change the job duties.
Finally, retaliation. If an employee complains to management or HR about perceived age discrimination in the workplace and the company retaliates by firing, suspending, or demoting the employee, then the employee may have a separate claim for retaliation. (I wrote recently about retaliation in more detail here.) If the retaliation comes fairly close in time to the protected complaint, that’s strong evidence for retaliation, especially if the stated reason for termination is fabricated nonsense.
How to Fight an Age Discrimination Claim in South Carolina
If you’ve suffered discrimination based on age or retaliation for reporting age discrimination, you have legal rights under the ADEA that you can pursue against the company. The first step is to file a Charge of Discrimination with the Equal Employment Opportunity Commission (more about them here). You have 300 days from the date of discrimination or retaliation to file with the EEOC, so you can’t delay.
The EEOC will investigate, and the company will have to provide a Position Statement in writing that seeks to explain why they’re actually a great company and would never dream of terminating an older employee based on age because they have a written policy that they wrote up at sometime in the past and how could you think such terrible, terrible, mean, and nasty thoughts about them like this? (I’m exaggerating only the slightest bit here.)
An experienced South Carolina employment lawyer can help you guide you through this process, including filing the Charge for you, which allows you to bypass the three to four month delay in getting an initial interview with the EEOC. There are also options to consider before filing the charge, so having that discussion with your attorney on the front end before a termination occurs can be helpful in preparing the case for eventual litigation.
If you have any questions about the topic of age discrimination (or any other type of discrimination), feel free to reach out to our office directly.