Fighting Age Discrimination in the Modern Workplace

Age discrimination is treating an employee unfairly because of their age. It can manifest in multiple ways, from a hostile work environment — in which an older worker is frequently subjected to negative behavior or comments about their age — to an employer firing, demoting, or refusing to hire a worker because of their age.

As Denver-based employment litigator Siddhartha Rathod says, “We spend half our lives, or more, at the office. When we are discriminated against at work, it shatters our fundamental identity of who we are.”

Reporting age discrimination is the best way to stop discrimination against other employees. Contact a local discrimination lawyer to find out if you have an age discrimination claim against your employer.

Age Discrimination Under the ADEA

Older workers are a protected class under federal law. The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against anyone in the age group of 40 and over. Paul Maxon, an employment litigation attorney in Boulder, Colorado, citing AARP statistics, says, “Almost two-thirds of older workers report having experienced age discrimination.”

The U.S. Equal Employment Opportunity Commission (EEOC) investigates and enforces federal workplace discrimination claims. If you want to bring an age discrimination lawsuit in federal court, you will first have to file a complaint with the EEOC and obtain a Notice of Right to Sue.

Some states also have anti-discrimination laws that go further than federal law, giving older workers more rights and legal remedies. Most states have employment or civil rights agencies that enforce state anti-discrimination laws.

Difficulties in Proving Age Discrimination Claims

“Typically,” says Rathod, “employers are savvy and don’t come out and say, ‘We fired you because of your age.’ They say, ‘We’re downsizing.’ However, when we look at the numbers, it turns out it’s a one-person reduction or a two-to-three-person reduction, and they’re all older employees.”

Rathod says he looks to factors like statistics to prove cases. “Who did they replace a terminated employee with, and what are the demographics of the workforce? We also look to comments like ‘You can’t teach an old dog new tricks’ or ‘When are you going to retire?’ These may be evidence of discriminatory behavior.”

It helps, says Maxon, that under the Older Workers Benefit Protection Act, a 1991 amendment to the 1967 law, “Employers have to disclose the ages of workers selected and not selected for termination. This allows older workers who are let go to determine whether they are being targeted because of their age.”

Signs of Workplace Age Discrimination

Ageism in the workplace often involves dismissive comments about a person’s age from coworkers or supervisors. Ageism also includes jokes about stereotypes associated with older people. Even if these comments seem harmless, they are a sign of possible age discrimination. These comments show supervisors don’t treat older workers with the respect that they should give all employees. Possible signs of workplace ageism include:

• Job descriptions aimed at millennials
• Comments about working past your retirement age
• Sudden change in performance reviews
• Promoting only younger employees
• Offering buyout packages primarily to older workers
• Comments about losing your hearing or vision

You can also show discrimination based on disparate impact. For example, hiring only recent college graduates disproportionately affects older workers. This has a disparate impact because most people graduate college at a younger age.

American Employers’ Growing Awareness of Ageism in the Workplace

Amy Miletich, a Denver attorney who represents companies in employment discrimination cases, believes employers may be getting more sensitive to issues of harassment and discrimination.

“I think everyone is a little more aware following the #MeToo movement,” she says. “There’s a lot more discussion today than there was even a few years ago about discrimination and harassment.”

Having Fair Company Policies and Procedures

Miletich works with employers to ensure they have compliant human resources and hiring manager policies. With proper policies and continuing education, employers can both prevent problems and fix issues as they arise.

“Most employers genuinely want to have knowledge of any complaints or issues, and they want to be able to look into them immediately,” Miletich says. “They want to address and remedy any issue before it turns into a charge of discrimination.” Employees who feel discriminated against should report issues as early as possible.

Rathod agrees. “If you sense you’re being discriminated against because you’re older, raise those concerns,” Rathod says. “Raise them in writing. Don’t wait. Be proactive. There are protections for those who complain. If you believe something is going on, say something.”

Three Steps if You Suspect Age Discrimination

If you suspect age bias in adverse employment treatment, you can take action. The attorneys recommend the three following steps:

1. Speak up. Lawyers for both sides agree it’s important to raise potential issues early.
2. Write things down. Rathod advises raising your concerns with your employer in writing. Keep contemporaneous notes to assist in future litigation.
3. Contact an attorney. “Age discrimination cases can be unique. The ADEA has different remedies than other discrimination statutes,” says Maxon.

Rathod also believes there’s a shift in thinking regarding the value of age diversity and mentoring in the company culture. “An experienced employee can bring years of experience to the table and say, ‘We’ve tried that, and here are the pitfalls.’ Sometimes value comes with experience.”

Find an Experienced Employment Lawyer

An employment discrimination lawyer can help you protect your rights and combat ageism. Employers get away with age discrimination because no one holds them accountable. An age discrimination lawsuit can help you get compensation and send a message that ageist treatment is not acceptable. Contact a local discrimination lawyer for legal advice about your case.