Senior Citizens Handbook - Age and Disability Discrimination

Senior Citizens Handbook - Age and Disability Discrimination

Last updated: March 2009

(Chapter 8 Section 2 of Senior Citizens Handbook)

Unfortunately, seniors often face discrimination, either outright because of their age or due to mistaken impressions of what they cannot do because of disabilities. Federal and Illinois laws prohibit others from discriminating against you in employment and housing because of your age or disability. In many cases, a landlord or employer must reasonably accommodate your needs. Also, you cannot be discriminated against because of age when applying for credit or participating in most federal programs.

Discrimination in Employment

In General

A federal law called the Age Discrimination in Employment Act (ADEA) makes it illegal for most employers to engage in employment discrimination against people over 40 years old on the basis of age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against you because of your age with respect to any term, condition or privilege of employment.

Examples: Employers cannot discriminate with respect to hiring, firing, promotion, layoff, compensation, benefits, job assignments and training. Likewise, employers cannot limit, segregate or classify employees in any way that would deprive them of employment opportunities or adversely affect employment status.

It is also unlawful for an employer to retaliate against you for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding or litigation under the ADEA.

The ADEA applies to federal government employers, private employers who have 20 or more employees and labor unions. The United States Supreme Court has limited the way ADEA applies to state government employers. However, if you are employed by the State of Illinois, you are protected from age discrimination under the Illinois Human Rights Act.

A few jobs are exempt from the ADEA: certain high level executives, police and fire employees, tenured faculty members at universities and federal employees in law enforcement or air traffic control. Consult with an attorney if you have been discriminated against and your job falls in one of these categories.

In certain instances, courts have recognized that age can be a bona fide occupational qualification (BFOQ). This means that in some occupations, usually those involving public safety, age alone can be a disqualification from employment. However, this exception applies to only a few positions covered by the ADEA.

Apprenticeship Programs

It is generally unlawful for apprenticeship programs, including joint labor/management apprenticeship programs, to discriminate on the basis of your age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the Equal Employment Opportunity Commission (EEOC) grants a specific exemption.

Job Notices and Advertisements

The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements.

Examples: ADEA specifically prohibits the use of job advertisements that specify an applicant should be “young,” a “recent graduate,” or that use terms such as “retired” or “over 65.”

A job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a BFOQ reasonably necessary to the essence of the business.

Pre-employment Inquiries

When you apply for a job, the ADEA does not prohibit an employer from asking your age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information should be looked at closely to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

Benefits

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing reduced benefits to younger workers.

Waivers of ADEA Rights

At an employer's request, you may agree to waive your rights or claims under the ADEA. However, there are specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must:

  • Be in writing and be understandable
  • Specifically refer to ADEA rights or claims
  • Not waive rights or claims that may arise in the future
  • Be in exchange for valuable consideration
  • Advise you in writing to consult an attorney before signing the waiver
  • Provide you at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.

If You Believe You Have Been Discriminated Against On the Job

If you feel you've been discriminated against on the job, you should talk to your employer to see if you can resolve the matter. If you cannot, you have the right to file a charge with the Equal Employment Opportunity Commission (EEOC). After the 60th day of filing your charge with the EEOC, you have the right to file suit in court.

You must file complaints with the EEOC within 300 days of the alleged unlawful discrimination. In order to preserve your right to bring a federal lawsuit at a later date, you must file a separate Notice of Intent to Sue within 300 days of the alleged discrimination.

Note that you have 300 days only because the Illinois Department of Human Rights also has jurisdiction over the claim. Otherwise, you would only have 180 days. 

Since the ADEA involves many technicalities, and since there is a deadline, it is best to have a lawyer handle the complaint. However, if you wish to file a complaint yourself, you have the right to do so. You may contact the EEOC at 800-669-4000 (toll free) to file a complaint.

If you file a charge with the EEOC:

  • The EEOC notifies the company that you have filed a charge of discrimination against them;
  • The EEOC decides whether to investigate the charge immediately or to proceed with a fact-finding process;
  • During the fact-finding process, the EEOC asks both parties for supporting documentation pertaining to the alleged discrimination;
  • In the meantime, the EEOC tries to resolve the problem between you and the employer; and
  • If no agreement is reached in the fact-finding process, the EEOC will decide whether to investigate the case further, to consider it for legal action or to close the case.

Going to Court

The EEOC investigates and then dismisses most charges filed with that agency. Very few proceed to a court case. In deciding whether or not to file a lawsuit, you should realize that litigation takes a great deal of commitment, time, and money. It can take an emotional and personal toll on you and your family. You should discuss these concerns with your lawyer and your family before deciding what course of action to take.

A victim of age-based discrimination can bring an action under ADEA against his or her employer within two years of a non-willful violation or within three years of a willful violation.

Age Discrimination in Employment (Illinois Law)

Like the federal ADEA, the Illinois Human Rights Act forbids discrimination in employment on the basis of age, where the employee is 40 or more years old. Unlike the ADEA, the Illinois Human Rights Act allows Illinois government employers to sue for damages. The Act also applies to private employers with 15 or more employees in age discrimination cases(the ADEA only applies to employers with at least 20 employees). If the employer has public contracts, there is no number of employees requirement.

You must file complaints with the Illinois Department of Human Rights (DHR) within 180 days of the alleged discrimination. To contact the DHR, call 312-814-6200 (Chicago office) or 217-785-5100 (Springfield office). Hearing impaired users call 312-263-1579 (TDD) or 217-785-5125 (TDD).

If you file a timely charge of discrimination with the EEOC before you file one with DHR, your charge is deemed filed automatically at DHR on the date it was filed at EEOC, and you will be notified that you may proceed with DHR under state law. However, DHR will take no action until EEOC makes a determination on the charge, and may adopt their determination.

There is a procedure which allows the employer to respond to the charge, allows the parties to agree to submit the chart to mediation and requires the DHR to investigate the charge and then decide whether there is substantial evidence that illegal discrimination took place. If DHR finds there is no substantial evidence, it will dismiss the charge, but you have the right to have the dismissal order reviewed by either the Illinois Human Rights Commission (IHRC) or by a court. If DHR decides there is substantial evidence, you have the right to file your own lawsuit or request DHR to file a complaint with the IHRC on your behalf. When there is a finding of substantial evidence, there is a conciliation procedure where DHR tries to work with the parties to eliminate the effect of the discrimination and prevent its repetition. The law has extensive procedures governing complaints filed in court or with the IHRC.

Disability Discrimination in Employment (Federal and Illinois Law)

The Americans with Disabilities Act (ADA) makes it illegal for private employers with 15 or more employees and labor unions to discriminate on the basis of disability. The United States Supreme Court has limited the ADA's applicability to State government employees. However, if you are employed by the State of Illinois, you are protected from employment discrimination on the basis of "handicap" under the Illinois Human Rights Act. Federal government employees are protected from disability discrimination under the Rehabilitation Act of 1973, which provides essentially identical protections as does the ADA.

The ADA protects against disability discrimination in all sorts of employment practices, including but not limited to recruiting, hiring, promotions, pay, termination and lay-offs. The ADA forbids discrimination based not only on actual disabilities, but perceived disabilities.

Example:
It is illegal for an employer to fire or demote you under a mistaken impression that you cannot perform a task, or a mistaken belief that you have AIDS.

In order to be protected under the ADA, you must be able to perform the job's essential functions, with or without reasonable accommodations.

Example:
An employer is required to accommodate a desk worker's need to have a special chair for back pain, but an injured assembly worker no longer able to do lifting essential to his job might not be protected.

If you have been discriminated against in employment on the basis of disability, consult an attorney. To preserve your rights, you must file a complaint within 300 days of the alleged discrimination. You may report disability discrimination to the federal Equal Employment Opportunity Commission (EEOC) at 800-669-4000 (toll free). To file a written charge with the Illinois Department of Human Rights, call the numbers shown above. Employees of federal contractors should report discrimination to the U.S. Department of Labor’s Office of Contract Compliance Programs, Chicago Regional Office, by calling 312-596-7010.

Discrimination in Housing

Disability Discrimination and Housing

Under the federal Fair Housing Act, a landlord cannot discriminate against you on the basis of disability. Apartments of less than 4 units that are inhabited by the landlord may be exempt from this law. It is also illegal to refuse to sell a house or negotiate based on a buyer’s age or disability. Banks cannot set different mortgage rates based on disability.

If you have a disability, your landlord cannot refuse to let you make reasonable modifications to your rental unit or common areas at your expense.

Example:
Your landlord cannot refuse to let you widen a door to allow passage of a wheelchair.

In newer buildings (ones that were ready for first occupancy after March 13, 1991) that have four or more units and an elevator, the public areas, doors, bathrooms and kitchens must be all accessible for people in wheelchairs. Your landlord may have to change his or usual policies or rules to accommodate your disability, such as allowing a live-in nurse or family member to stay with you despite a no-occupancy rule, or allow a seeing eye dog on the premises despite a no-pet rule.

If you believe a lender, home seller, apartment manager or landlord has violated the Fair Housing Act, you should consult with an attorney. You generally have one year to file a complaint. You may also contact the Department of Housing and Urban Development (HUD) directly to file a complaint. To contact HUD, call 800-424-8590 (toll free), 800-543-8294 (TDD).

Age Discrimination and Housing

The Illinois Human Rights Act protects Illinois residents from discrimination in real estate transactions (including rentals) based on age. If you believe that you have been denied housing because of age, consult with an attorney about filing a written charge with the Illinois Department of Human Rights within one year of the violation.

Special Note to Grandparents and Guardians of Children

Grandparents who care for their grandchildren should be aware that discrimination based on "familial status" is illegal under both the Federal Fair Housing Act and the Illinois Human Rights Act. If you are the guardian or custodian of children under 18 years of age, or if you have children living with you with the written consent of the children's parent or custodian, you cannot be denied housing on that basis.

Exception:
One important exception is that a landlord can deny housing for the children if the housing meets special rules to qualify as housing for the elderly.

If you have been denied housing because you are a child's caretaker, consult an attorney about filing a complaint with HUD and the Illinois Human Rights Commission.

Other Discrimination

Discrimination in Access to Federal Programs

The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in all programs and activities receiving federal funding. There are exceptions to this Act.

Example:
If a program was designed to benefit persons of a certain age group, other people can be denied benefits.

Consult with an attorney if you are the victim of discrimination by a government agency. You must file complaints with the federal agency that discriminated against you. If the discrimination is not resolved by the agency, you can file a federal lawsuit to stop the discrimination.

Discrimination in Access to Credit

The Equal Credit Opportunity Act makes it illegal for creditors to deny credit to senior citizens on the basis of age. You must file any lawsuit within one year. You may be able to recover your actual monetary loss and punitive damages.

Miscellaneous Age Discrimination

Besides prohibiting age discrimination in employment and real estate transactions, the Illinois Human Rights Act forbids age discrimination in access to financial credit and access to public accommodations.  

Enforcing Your Rights

The laws forbidding discrimination are many and complicated. If you have been discriminated against, you should seek legal advice. Do not delay. In most cases, any claim of discrimination must be brought within 180 days of the illegal act (you have one year in the case of housing discrimination).

A lawyer may be able to help you obtain monetary compensation for your discrimination. A lawyer can also help you in filing the complaint with the right agency. The government agency charged with investigating discrimination (for example, the Department of Housing and Urban Development in cases of housing discrimination) can often work out a plan with the person or organization that discriminated to address the problem. The plan may include solutions other than monetary compensation.

Where to Go For More Information

Statutes 

Agencies and Organizations

Equal Employment Opportunity Commission
The EEOC promotes equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws and through education and technical assistance. The website has information for employees on federal laws prohibiting job discrimination and how to file a complaint.
800-669-4000 (toll free)

Illinois Department of Human Rights
Chicago office 312-814-6200
or 866-740-3953 (TTY)

Springfield office 217-785-5100
or 217-567-5125 (TTY)

Marion office 618-993-7463
or 866-740-3953 (TTY)

U.S. Department of Labor's Office of Contract Compliance Programs
Chicago Regional Office
312-596-7045

U.S. Department of Housing and Urban Development (HUD)
800-669-9777(toll free)
800-543-8294 (TDD)

National Employment Lawyers Association
The National Employment Lawyers Association is a nonprofit, professional membership organization of more than 2,700 lawyers from around the country who represent employees in employment matters. You can search for a lawyer at its website. To request a state listing of employment lawyers, please send a written request along with a self-addressed, stamped, letter-size envelope to:
NELA Attorney Listing
44 Montgomery St. Ste., 2080
San Francisco, CA 94104
415-296-7629

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