What is Age Discrimination?
Age discrimination occurs when an employee or applicant is treated less favorably than similarly situated employees or applicants because of his or her age.
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.
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?
One of the critical elements of an age discrimination claim is that the employee or applicant was subjected to an adverse employment action because of his or her age. In other words, the plaintiff must show that, but for his or her age, the adverse employment action (termination, demotion, failure to hire, etc.) would not have occurred.
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:
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:
Age discrimination occurs when an employee or applicant is treated less favorably than similarly situated employees or applicants because of his or her age.
1. Experiencing Age-Related Comments or Harassment from Decision Makers
Most employers know that making explicit comments, jokes, or insults about an employee’s age can result in legal trouble, so direct evidence in age discrimination cases is quite rare. Courts typically only find a statement to constitute discrimination when it references age in a derogatory or stereotypical way or when the statement shows a desire to replace older employees with younger employees.
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.
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
Employers sometimes try to persuade older employees to retire even when they have not indicated to management a desire to do so. Employees may be offered retirement packages or told that a reduction in force is imminent and that retirement would be an optimal alternative to termination. Employers may even pressure or force employees to retire, which may constitute an adverse employment action.
3. Receiving Unfair Discipline
All employees, regardless of age, should be treated equally. If an employee can show that he or she receives discipline for conduct that younger employees do not, or that he or she receives discipline for groundless reasons, this may establish a prima facie showing of age discrimination.
All employees, regardless of age, should be treated equally.
4. Being Demoted or Denied Promotion
Similarly, if an employee 40 years of age or older is demoted and replaced by a younger employee, or denied a promotion given to a younger employee, he or she may also establish a claim of discrimination if the employee can overcome the given business justification for the employer’s actions.
5. Being Excluded or Isolated
As with most evidence in age discrimination cases, the person or persons engaging in the discriminatory conduct must be a decision-maker, meaning a supervisor or manager. If an employer is excluding an employee over the age of 40 from meetings or decisions or isolating them from co-workers or members of their department, that employee may have evidence of discrimination.
6. Having Their Position Eliminated
Employers sometimes try to cover up a termination or demotion by saying the employee’s position has been eliminated. Sometimes the position is given a different role or title despite the job responsibilities remaining the same, again in an effort to conceal the employer’s true motive. If a younger employee assumes the role, this may evidence discrimination.
7. Being Deterred from Applying and Asked their Age During an Interview
Employers may try to deter older applicants by placing restrictions on maximum years of experience for a position or specifically asking for recent college graduates.
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.
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.
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.
How can an employee fight age discrimination?
An employee’s first step in pursuing an age discrimination claim is to file a formal complaint with his or her employer’s Human Resources department or through a similar employer grievance procedure. The next step should be to consult an employment law attorney that can advise the employee on the applicable state and federal law. If the employer retaliates against the employee after reporting discrimination, that will constitute a separate action that an employment attorney could likewise assist with.
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.
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.
Are you experiencing age discrimination in your workplace?
Have you had trouble filing your age discrimination claim?
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Have you had trouble filing your age discrimination claim?
We're here to help.
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