Law Blog

LegalMatch just conducted a study looking at age-discrimination issues and found an overall increase in queries over the past 12 months.  Why the sudden increase in people seeking legal help for their age discrimination claim?  And what other trends have recently surfaced in the area of age discrimination law that effect everyday people?

Let’s start with the basis for any age discrimination claim: The Age Discrimination in Employment Act (ADEA).  The ADEA provides that discrimination of individuals over the age of 40 based on their age is illegal and a prosecutable offense.

Currently, the majority of age discrimination cases we see at LegalMatch are employment related: hiring, firing, and forced retirement contexts.  This trend is not limited to one employment sector but rather affects both blue collar and white collar employees alike.

The most obvious culprit affecting these age discrimination numbers is the rising nationwide unemployment rate, currently hovering around 9.1%.  Any time there is an economic downturn, people lose their jobs.  When alternative jobs aren’t immediately available, a layoff that normally would be ignored can turn into an age discrimination lawsuit.

Interestingly enough, the Supreme Court recently made it much harder to win an age discrimination suit by ruling that the employee now bears the full burden of proving that age was the determining factor in his or her layoff, firing or demotion.  This is a significant departure from the previous balancing test the Court employed, and makes this type of lawsuit especially difficult because rarely would an employee be present when their employers are discussing their future- a key piece of evidence.

A recent article in the Wall Street Journal looked at another interesting aspect of age discrimination in the wake of layoffs- reverse age discrimination.  The article examined the rise in younger employees being laid off, often times in numbers equal or greater than their older colleagues.  Employees in their 20s and 30s are finding themselves more at risk of a layoff, as employers look to avoid age-discrimination lawsuits by adopting a last-one-in, first-one-out policy.

The LegalMatch study also confirmed this trend as a number of the age-discrimination inquires were disgruntled employees under the age of 40.  One of the big problems with this trend is that this younger age group does not have the same legal recourse.  There is no similar protection as the ADEA in place provided for the younger generation.  Essentially, by laying-off the younger members of the company, employers are shielding themselves from an age discrimination lawsuit.

Although the standard for age discrimination has been raised, the potential for suits is alarming and laying off younger workers is seen as a solution.

In 1967, Congress passed the Age Discrimination in Employment Act (ADEA) to protect U.S. workers age 40 and above from employment discrimination based on age.  However, despite this act, age discrimination is alive and well in the U.S.[1]

According to the AARP, of the 11.1 Million unemployed people as of December 2008, 1.4 Million alone were age 55 and over.[2]  Age discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) have recently become one of the fastest-growing discrimination categories in U.S. history since the ADEA act was passed.[3] 

During the past five calendar years, EEOC data reports a 9.3% increase in age discrimination complaints, or over 92,000 complaints nationwide.  Of these, only a fraction of these complaints had merit (15,430) but even with this small number of meritorious complaints damages totaled to $348 Million![4]  Over the past five years ending 5/28/09, nearly 6,000 cases specifically alleging age discrimination have been filed, nationwide, with LegalMatch and are reflective of the general trend. 

And, it’s not just the 40 to 50 year old workers who are making these allegations.  In March 2009, the EEOC settled a lawsuit alleging age discrimination against the Meenan Oil Company in Tullytown, Pennsylvania who terminated a 71 year old sales representative because of his age.[5]  The company settled for $80,000.  This is no different than customers of LegalMatch who inquired about age discrimination and who ranged in age from as young as 40 years old to as old as 85! 

During the past 12-months, the following are the top ten states where LegalMatch customers sought attorneys to represent them with their age discrimination complaints.  Together, all ten states accounted for over half of the age discrimination complaints filed with LegalMatch.

1. CA
2. TX
3. FL
4. IL
5. OH
6. NY
7. AZ
8. TN
9. VA
10. GA

Given our own LegalMatch.com data and the records of the EEOC, we expect allegations of employer’s discriminating against older workers to continue to rise as the U.S. population ages.  Apparently, it is only through private legal actions or through claims filed via the EEOC or both that older U.S. workers will gain protection in the workplace.

[2] Port Lucie Woman Wins $75,000 in Age Discrimination Case 

[3] U.S EEOC Web Site

[4] U.S. EEOC ADEA Claims

[5] Meenan Oil and Litigation

Almost everyone knows what Prenuptial Agreements do: they are premarital agreements for the division of property following a divorce. What no one really knows is how many of them exist. Data from Legalmatch.com client intake reports, however, shows that these agreements are most popular for the following age brackets: 

AGE                % CLIENTS SEEKING PRENUPS

18-25               11%
26-32               23%
33-39               21%
40-46               18%
47-53               14%
54-60               6%
61-67               2%
68 and above    1%

The median age for a first marriage in the United States is 26. Most second marriages (i.e. where at least one of the spouses has been married before) occur after the age of 35. Although most experts think prenuptial agreements are most common for second marriages, LegalMatch’s numbers show that a large number of people younger than 35 are getting prenuptial agreements.

Nothing wrong with that, and most divorce attorneys think it’s a wise idea for people to officially designate what is and is not separate property prior to their marriage, whether it’s their first, second, or 16th. If folks going through a second marriage are doing it, that probably means it would have been a wise idea the first time around as well.