The Missouri Human Rights Act was amended two years ago to be in further compliance with federal anti-discrimination statutes. The act makes it unlawful to include age preferences in job advertisements, although it’s not illegal for employers to ask for a date of birth.
Age discrimination is cited in workplace complaints when an employee is fired and replaced by a younger person; an employee isn’t hired for a position because of age; or an employee’s age is the subject of disdain or ridicule.
If someone believes he or she faces age discrimination, a complaint can be filed with the Missouri Commission on Human Rights, with or without a lawyer. The case can be resolved within or outside the legal system.
Todd Werts, an attorney for Lear Werts LLP in Columbia, has advice for those who are considering filing a discrimination complaint.
Assess the matter
Werts said the first thing to do is take a step back and ask if the situation can be resolved in person or through the company’s human resources office.
“If a person is continuing to work there, an employment relationship is a relationship, nonetheless,” Werts said. “There is some value in trying to address the issue, bring attention to the issue and bring in someone that can do something about it, in such a way that’s not going to make it impossible to continue working there.”
Werts said a significant factor in the decision is understanding the amount of time the case may require for resolution. “I would say that the most common amount of time it takes for a case is probably 18 months but sometimes they last two or three years,” Werts said.
File a complaint
After reflection, if a decision is made to move forward with the case, a complaint can be filed directly through the Missouri Commission on Human Rights or at the federal level through the Equal Opportunity Commission. A lawyer isn’t necessary to take this step, although that is always a possibility.
Werts said it’s important to note that the victim has 180 days from the last allegation of discrimination to file the charge.
“The first step of a litigated case is to make sure that no matter how you handle it, if it’s something a person wants to pursue, they file it on time,” Werts said. “Don’t just sit on a person’s right if they want to do something about it. The time limit is really key.”
Process of investigation
After filing, the commission has another 180 days to investigate the case. Usually, the commission will use a conciliation process, where it helps the employer and employee work through the problem.
“That sometimes works, sometimes doesn’t, and sometimes a lawsuit is necessary,” Werts said. “Usually that’s when my firm gets involved — if a lawsuit is needed.”
One benefit of filing a case is that the ones making a complaint have an opportunity to stand up for their rights.
“The rules in the workforce don’t matter if they aren’t enforced,” Werts said.
Additionally, the complainant can gain the financial means needed to continue working, even at a lower wage.
“We try to find out what the economic loss is of this person not being able to work,” Werts said. “If they get another job, is there a difference in their wage from the last job? If so, there’s a chance that person can get the means to make up for that difference.”
However, the stress of filing a lawsuit can be mentally draining.
“It’s something that I sometimes have counseled clients on, and I tell them the range of outcomes and tell them what we can possibly get,” Werts said.
Hiring a lawyer can be costly. Filing on a contingency-fee basis , where attorneys is paid a percentage of what they earn for the injured party, is common, according to Werts.
However, there are also other considerations to protect and correct the wrongdoing. “Anti-discrimination lawsuits have what they call a fee-shifting provision, which means that if the employee wins, one of the things they get from the employer is an amount to pay for the reasonable fees incurred because they had to file a lawsuit,” Werts said.