The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of the University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Age discrimination

in employment

These are particularly risky times for workers in their 50s and early 60s. The current economic downturn has triggered widespread layoffs and workforce reductions. It is one thing to "hit the street" at the age of 25, 35, or even 45.

But being on the street at age 55 is another matter. You are seven years from age 62 and early Social Security benefits. You are 10 years from being eligible for Medicare. You may have children in college, or adult children, parents, or even grandchildren you are helping to support, and your overall cost of living is probably be at a level that assumed another decade of stable employment.

Tax-deferred savings such as 401(k) plans are intended for retirement, not to sustain living costs during unemployment. Withdrawals from such plans are subject to severe tax penalties.

Older workers confronting layoffs, downsizing, or forced early retirement should be mindful of the federal Age Discrimination in Employment Act. First enacted in 1967, it prohibits employment discrimination against persons 40 or older.

Except for a few occupations like police officers, pilots, firefighters and high-paid executives, there is no upper age limit.

Employers looking to trim costs naturally see long-time, older workers as targets for termination, if for no other reason than the fact they cost more. Wage scales generally recognize seniority with higher pay rates. But in economic tough times, older employers are the "low-hanging fruit" of cost reduction.

The Age Discrimination in Employment Act not only applies to terminations, but also to other adverse job decisions, such as demotions or withholding promotions. Workers over 40, and particularly over 50, should be vigilant in recognizing signs of agism and be prepared to challenge them.

It should be noted, however, that employers with a workforce of fewer than 20 employees are not subject to the act. And, South Dakota, unlike most states, does not have a statute prohibiting age discrimination.

Any person believing they have been subjected to age discrimination in employment should contact the Equal Employment Opportunity Commission, 303 E. 17th Avenue, Suite 510, Denver, CO. The EEOC will investigate and try to resolve the complaint.

You have to be patient. It takes the EEOC six months to a year to complete its investigation. After 180 days, however, you can demand a "right to sue" letter and go to court.

Further information on this subject is available at The University of South Dakota Senior Legal Hotline, 1-800-747-1895, a toll-free number supported by the State Bar of South Dakota.

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