How Do Victims of 2023 Layoffs Show That They Were Illegally Targeted for Termination?

Companies in New York and around the nation have been announcing massive layoffs in 2023. While inflation, artificial intelligence, and other excuses have been used, disturbing reports have emerged that employers may be targeting older workers, minorities, union activists, and workers with health issues. During the height of the COVID-19 pandemic, there was an upsurge of age discrimination in layoffs, as stereotypes of older workers being unfamiliar with digital technologies led to some of them experiencing reduced access to remote work accommodations, and increasing risk of being targeted for layoffs.

The Age Discrimination in Employment Act (ADEA) protects workers over the age of 39 from employment discrimination in which age is a factor. The law has been around for more than 50 years, and has been strengthened several times since it was enacted in 1967. The Equal Employment Opportunity Commission, which helps enforce the law, emphasized in 2020 that the ADEA “prohibits a covered employer from voluntarily excluding an individual from the workplace based on being 65 or older. This rule is true even if the employer [was] protecting the employee due to higher risk of severe illness from COVID-19”.

Age discrimination is one form of ageism, or discriminating against or stereotyping older persons due to their age. It also shows up in promotions or raises. Older workers may be passed over for younger ones. Older workers experienced lower average increases in pay since 2020, probably below the level required to keep up with inflation in 2021 and 2022.

Some layoffs may be difficult to classify as illegal or legal. Some employers include younger workers alongside older ones in a list of laid off or reassigned personnel.

Others include token members of non-minority groups in layoffs targeting offices, plants, stores, or restaurants in which there are more minorities. Employees who are not disabled may be mixed in with a list of laid off employees who are more likely to be disabled.

The EEOC has noted that “[a]n employment policy or practice that applies to everyone, regardless of age, can be illegal if it hurts applicants or employees age 40 or older and is not based on a ‘reasonable factor other than age’ (RFOA)”. A factor other than age is like a legitimate reason other than discrimination which may explain why an employee who is a woman, a member of an ethnic or racial minority or religious minority, disabled, pregnant, gay or lesbian, or another protected group may have been terminated or reassigned when workers from another group were not. The employer’s good reason may mean that termination or other change in employment was allowed by the law.

One example of when a layoff may be illegal is when the employer may have targeted workers who are protected under the law, while keeping workers who were not members of the protected group. An employer may have manifested this targeting by making insulting or insensitive comments about the group, for example by assuming or saying that older workers can’t use computers or use technology. Or a supervisor may show off discrimination by making up false reasons to include an employee in a layoff. Employees may benefit themselves by banding together to collect evidence of a pattern of targeting workers belonging to a group defined by age or some other factor worse, or dehumanizing comments.

If you have been laid off, suffered a difficult reassignment, or have been denied a promotion or equitable raises when similar employees have kept their jobs or enjoyed such a benefit, you may benefit from a free consultation to make sure your rights are protected.