What is Age Discrimination?
The Age Discrimination in Employment Act (ADEA) prohibits such discrimination of anyone 40 years of age or older, although some states have laws that protect younger workers as well. For more information about the ADEA and age discrimination generally, see our related blog here.
What does age discrimination in the workplace look like?
Because the plaintiff carries the burden of proof in age discrimination cases, the more direct or circumstantial evidence of discrimination an employee can introduce, the more likely he or she is to prevail. Below is a list of just a few examples of what may constitute direct or circumstantial evidence of age discrimination in both the hiring process and the workplace:
1. Experiencing Age-Related Comments or Harassment from Decision Makers
Commenting on an employee’s eligibility for retirement does not reference age in a derogatory or stereotypical way or show a desire to replace older employees with younger employees, but an employer telling an employee “you’re too old” or that there is a “graying of the sales force” may.
However, courts have distinguished so-called “stray remarks” unrelated to the adverse employment action or not made by decision-makers from the type of blatant comments required to show actionable discrimination. Decision-makers encompass only those responsible for the adverse employment action, so comments by co-workers or statements not related to the adverse action are not evidence of age discrimination.
2. Being Persuaded or Forced to Retire
3. Receiving Unfair Discipline
4. Being Demoted or Denied Promotion
5. Being Excluded or Isolated
6. Having Their Position Eliminated
7. Being Deterred from Applying and Asked their Age During an Interview
Employers are prohibited from asking about an applicant’s age during the interview process, although they may ask for an employee’s date of birth in the job application when there are legitimate reasons for needing the information such as to conduct a background check or to ensure compliance with a minimum (or maximum, in rare cases) age requirement for the job. Nonetheless, employers are prohibited by the ADEA from using an applicant’s age as a basis for rejecting them.
How can an employee fight age discrimination?
Once it is time to fight the practices of age discrimination, the most important thing an employee can do to protect their rights is to document every instance of potential discrimination along with any witnesses. Employees carry the burden of proof, and there is rarely direct evidence of discrimination, so it is imperative that employees are equipped with as much information as possible when pursuing a claim against employers with Human Resources departments and personnel prepared to do the same.
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