## Age discrimination in employment in South Dakota Federal + South Dakota law protect workers age 40+ from discrimination based on age. The protections are real but practical challenges + legal hurdles make age cases harder than other discrimination claims. ## Federal protections — ADEA **Age Discrimination in Employment Act (1967):** - Workers age 40+ protected - Employers with 20+ employees - Includes employment agencies + unions - Federal employees specifically covered - Both private + public sector **No upper age limit:** - Even very young workers (over 40) protected - Older workers (age 70+) increasingly common claims ## State law often broader **${s.name} state law may:** - Lower employer-size threshold (sometimes 1+ employees) - Lower protected age (some states protect all ages) - Higher damages - Stronger remedies - Different procedures ## Protected actions **Cannot discriminate in:** - Hiring - Firing - Promotion - Compensation - Job assignments - Training opportunities - Fringe benefits - Layoffs / RIFs - Recruitment - Job advertising ## Protected from **Age-based:** - Stereotypes ("too old to learn," "slowing down," etc.) - "Fresh blood" preferences - "Cultural fit" code for younger workers - Compensation-based age proxies ("too expensive") - Educational requirements as proxy - Technology requirements as proxy - Job-title eliminations targeting older workers - Performance review changes - Mandatory retirement (mostly illegal) ## Common scenarios **1. Hiring discrimination:** - Job ads asking "recent grads" / "digital natives" - Interview comments about age - Concerns about "long-term commitment" - Asking date of birth / graduation - Background checks on age **2. Promotion / training:** - Younger employees promoted past older - Training opportunities denied - Mentorship reserved for younger - High-profile projects denied **3. Layoffs / RIFs:** - Disproportionate older workers laid off - Senior employees "streamlined" - Position elimination targeting older - Required retirement **4. Constructive discharge:** - Hostile environment for older workers - Sudden negative reviews - Demotions / job changes - Pressure to retire - Reduced responsibilities **5. Compensation:** - Pay cuts disproportionately to older - Bonus structures favoring younger - Different compensation reviews ## Causation standard — Gross v. FBL Financial **The legal hurdle:** - 2009 Supreme Court ruling - ADEA requires "but-for" causation - Plaintiff must prove age was THE deciding factor - Higher than Title VII (sex, race, etc.) which uses "motivating factor" - Makes cases harder than other discrimination **Practical effect:** - Mixed-motive cases harder - Plaintiff must show age tipped balance - Even if other factors matter, age must be decisive ## Proving age discrimination **Direct evidence (rare):** - "You're too old" - "We need new blood" - "You should retire" - Written evidence (emails, memos) - Recorded statements - Most defendants smarter than this **Circumstantial evidence (most cases):** - McDonnell Douglas framework - Adverse action against protected employee - Younger replacement / continued advertisements - Performance reviews change suddenly - Pattern of similar treatment - Statistical evidence - Comments / atmosphere - Employer's reasons not credible **Statistical evidence:** - RIFs disproportionately impact older - Hiring patterns showing bias - Promotion rates by age - Compensation by age (controlling for other factors) - Termination rates by age ## Pretext analysis **Defending against age claims:** **Common employer reasons:** - Performance issues - Position elimination - Restructuring - Cost reduction - Skills mismatch - Customer preferences **Plaintiff must show pretext:** - Reasons not credible - Inconsistent with practice - Recently created post hoc - Different treatment of younger employees - Documentary evidence contradicts - Timing suspicious ## Damages **ADEA remedies:** - **Backpay** (lost wages) - **Frontpay** (future lost wages, sometimes) - **Reinstatement** - **Liquidated damages** (DOUBLE backpay for willful violations) - **Attorney's fees + costs** - **Limited equitable relief** **NOT available under ADEA:** - Pain & suffering - Emotional distress damages - Punitive damages (state law sometimes) **State law often higher:** - Compensatory damages (emotional distress) - Punitive damages - Higher caps or no caps - ${s.name} specific remedies ## Filing deadlines **ADEA charge:** - 180 days from discriminatory action - 300 days in most states (deferral states) - File with EEOC - Right to sue letter **Lawsuit:** - 90 days from right-to-sue - Federal or state court **State law:** - ${s.name} specific deadlines - Different agency - Coordinated procedures ## Severance + waivers — special protections **Older Workers Benefit Protection Act (OWBPA, 1990):** - ADEA waivers must meet specific requirements - 21 days to consider (45 in groups) - 7 days to revoke - Specific consideration beyond what owed - Plain language - Written agreement - Advised to consult attorney - Group RIF info disclosure **Failure to comply** = waiver invalid + ADEA case still viable. ## Group layoffs / RIFs **OWBPA disclosure requirements:** - Specific job titles / ages of those selected - Specific job titles / ages of those NOT selected - Selection criteria - Decisional unit description - Time + factors considered **Hidden in agreements often:** - Reveals discrimination patterns - Important for case evaluation - Don't sign without review ## Class actions / collective actions **ADEA collective actions:** - Similar to FLSA (29 USC § 626(b)) - Opt-in mechanism - Notice + consent forms - Common patterns in mass layoffs **${s.name} state class actions:** - Standard Rule 23 procedures - Different mechanism - Sometimes preferred ## Defenses to age discrimination **Common employer defenses:** - **Bona fide occupational qualification (BFOQ)** — narrow - **Reasonable factors other than age (RFOA)** — burden - **Bona fide seniority system** - **Bona fide retirement plan** (limited) - **Public safety exception** (police, firefighters — limited) - **Performance-based decisions** - **Skills-based decisions** ## Mandatory retirement **Generally illegal:** - ADEA bans mandatory retirement - Specific exceptions: - Bona fide executives (over 65, with $44K+ retirement) - Public safety officers (some states) - Tenured college faculty (limited circumstances) - Pilots (FAA age 65 limit — federal preemption) ## Strategic considerations **For employees:** - Document everything (especially comments) - Save communications + reviews - Identify pattern of age comments - Compare treatment to younger employees - Don't sign waivers without review (especially severance) - File EEOC charge promptly - Consult employment attorney **For employers:** - Document legitimate reasons - Consistent treatment across ages - Train managers on age-neutral language - Comply with OWBPA in severance - Avoid age-coded language - Statistical analysis of decisions ## Recent trends **Increasing scrutiny:** - Tech industry age discrimination - "Cultural fit" claims - Job ads with coded language - Statistical analysis tools - Class actions in tech **EEOC focus:** - Age discrimination strategic enforcement - High-profile cases - Public-private cooperation ## What you should do If you face age discrimination in South Dakota: document everything, file EEOC charge within 180-300 days, consult an employment attorney. Many South Dakota employment attorneys offer free consultations + work on contingency. Don't sign severance / release without review — OWBPA may make it invalid. Group RIF documents may reveal pattern. --- *This guide is general information about federal + South Dakota law as of mid-2026 and is not legal advice. Age cases are technical + tough. Talk to a licensed South Dakota employment attorney about your specific situation.*