Age Inappropriate

Age, says Debra L. Raskin, is one of the last bastions of acceptable discrimination. 

“On some perverse level it’s still considered praise to say someone acts young or thinks young,” says Raskin, an employment attorney with Vladeck, Waldman, Elias & Engelhard who handles age discrimination cases for plaintiffs. “There are a million phrases that reflect the stereotypes of what people of a certain age can and cannot do. ‘Don’t be old-fashioned.’ ‘We need young blood.’ ‘We are removing dead wood.’ Have I heard all these? You bet.”

According to national EEOC statistics, there has been a marked increase in the number of Age Discrimination in Employment Act (ADEA) cases since the Great Recession of 2008, says Laurie Berke-Weiss of Berke-Weiss Law PLLC. “I meet with a lot of clients who are having trouble at work, who see storm clouds on the horizon, and easily 50 percent of those are in their 50s and 60s,” she says. “And I am probably underestimating.”

But as with other areas of discrimination, such as race and gender, it’s difficult to prove. “It’s not like somebody said to them, ‘You’re too old,’ but it implicates age,” Berke-Weiss says. “The test is to prove that age is the ‘but-for’ cause, and that is very hard.” 

She’s referring to Gross v. FBL Financial Services, a 2009 decision in which the U.S. Supreme Court declared, 5-4, that employees filing a lawsuit under the ADEA must show that age was not just a determinative factor; they must show the decision would not have occurred without it. “It is a slightly more discouraging climate for age discrimination plaintiffs than before the decision,” says Anne Golden of Outten & Golden.

The defense has its challenges as well, says Bettina B. Plevan of Proskauer Rose, who represents companies in such actions. “In all aspects of discrimination, including age, it sometimes is based on comments someone has made that are interpreted as ageist. The defense has to be based on explaining what the nondiscriminatory business reasons were for making a decision. You need to drill down into what has happened in the organization. Is this a person who performed well 10 years ago but is not performing well now? Or has the organization changed in areas like technology? Is that an age issue, or did they just not learn the technology they needed to learn? That’s a subtle point.”

Workers who suspect they may be targeted, say the attorneys, should keep detailed notes of their work situations. “And remember that HR is generally not your friend,” Golden says. “If your company has policies that enable you to make complaints, you should do it. But be clear in the complaint that you think it is age discrimination. It is not illegal for an employer or manager to be unfair or cruel or mean or even psychotic and a bully. None of that is illegal. Age discrimination is a protected complaint—at least legally—so if you think your legal rights are being violated, talk to a lawyer.”