Today is my third and final posting in the three-part series “What Is My Case Really Worth?”  For my final posting in this series, I will be focusing on employment age discrimination cases under the ADEA.

The ADEA protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment.  As we know, you must file a charge of age discrimination with the EEOC prior to bringing a lawsuit.  Also, in order to be covered under the ADEA, your employer/prospective employer must employ 20 or more employees (slightly different from the requirement for 15 employees under Title VII race, gender, national origin, etc. claims.)  Note that it is not illegal for an employer to favor an older worker over a younger worker, even when the younger worker is over 40 years old.  The ADEA does NOT protect workers under the age of 40.  Also, employers can require certain age limits if they have a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.”  Examples of this exclusion would include hiring a young actor to play a young character in a movie or when public safety is at sake (pilots, bus drivers, etc.)  Assuming that you have a valid ADEA claim, we will discuss the damages you can recover in court.


Like other types of employment cases, back pay is the most often awarded damage in ADEA cases.  There is no cap on back pay and, in my experience, workers with age cases typically have the largest amount of back pay because they have the hardest time finding a new job .  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of the age discrimination MINUS any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been discriminated against.  One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated because of your age on December 1st but get a new job making the same amount or more one week later, then the amount of recoverable back pay is the monetary equivalent of one week’s pay.  However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. Employees must continue in their search for a new job by submitting applications and resumes, as well as engaging in job interviews, throughout the entire course of the litigation. This continued search for subsequent comparable employment is a crucial part of mitigating damages.  Also worth noting, if an employee accepts a new job that pays less than her old job, she is nevertheless still entitled to the difference in wages between the old job and new job up until the matter is concluded. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.


Like FMLA cases, ADEA cases permit employees to obtain liquidated or “double” damages.  Typically, you take the amount of the employee’s back pay and multiply it by two in order to arrive at a number for for the potentially recoverable amount of liquidated damages.  However, liquidated damages are only permitted in cases where the employer’s conduct was willful.  A willful violation occurs when an employer actually knew that its conduct violated federal law or showed reckless disregard for that fact.


Although most employees do not want to go back to work or work for the employer that treated them differently due to age, reinstatement to an employee’s prior position with her old employer is a recoverable remedy under the ADEA.

If the Court does not award reinstatement, it might order that an award of “front pay” is appropriate.  Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.


Also like FMLA cases, compensatory and punitive damages are not recoverable in ADEA cases.  These include pain and suffering, mental distress, physical suffering, mental impairment, etc. Also, punitive damages or “punishment” damages are not recoverable.


Reasonable attorney’s fees and costs are awarded, if an employee prevails.


The most likely form of damages that could be awarded under the ADEA is probably an employee’s back pay.  The ADEA also provides for liquidated damages in an amount equal to your back-pay (“double damages”), but only if the employee can show a willful violation on the part of the employer – a task that is not exactly easy.  Reinstatement or front pay is another possible remedy, but is only granted at the court’s discretion.  Compensatory and punitive damages are not permitted in ADEA cases.  Lastly, an employee can recover attorney’s fees and costs under the ADEA, as seems to be a common thread among most federal employment laws. If you feel that your employer has subjected you to age discrimination, then you should contact a South Carolina employment lawyer.

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