Age Discrimination Is Rampant, Difficult to Prove

You’re about to lose your job and you suspect you may be replaced with someone younger. How can you tell if it’s an age discrimination lawsuit?

Signs of Age Discrimination

“It happens a lot in overall restructuring,” says Allyson L. Belovin, an employment and labor lawyer at Levy Ratner in New York City. “When mostly older people are let go, and younger employees are promoted, it sends up red flags and identifies victims of age discrimination.”

If you and at least one other employee have lost your jobs in the same layoff, federal law allows you to get a list from your employer of those let go, including ages and positions. But even if you are the only worker terminated, you can file a complaint.

Federal and State Laws Prohibit Age Discrimination in Employment

The federal Age Discrimination in Employment Act (ADEA), passed more than a half-century ago, outlaws discrimination against older workers and job applicants. New York state and city laws provide even greater protection, covering smaller companies and allowing for attorney’s fees and monetary damages to punish an employer for egregious conduct.

Despite those protections, it’s a common occurrence. In New York, 12.9 percent of the 3,534 federal workplace discrimination complaints in 2022 involved age discrimination, according to the U.S. Equal Employment Opportunity Commission (EEOC).

Difficulties in Proving Age Discrimination Claims

Age discrimination complaints are often an uphill battle because employees must prove that age bias was the only reason for being let go. Businesses often contend they were trying to cut costs. 

In non-termination cases—an older employee is demoted, or shut out of team projects more likely to lead to promotions or bonuses that are offered to younger workers—evidence can be scarce, making them difficult to prove.

“Many employers are sophisticated enough not to be blatant about different types of discrimination,” Belovin says.

What To Do if You Suspect Age Discrimination in an Employment Decision

Before making a complaint, however, be sure the situation actually involves an employment discrimination claim. A boss who curses at you or says mean things isn’t violating the law unless the comments are discriminatory. Following the steps outlined in your company’s employee handbook is also important. 

Before signing a severance agreement or even making a complaint, it’s a good idea to talk to an employment lawyer. One of the biggest mistakes employees make is failing to notify their employers about a concern, says Marijana Matura, a partner at Kessler Matura on Long Island.

“We always recommend putting a complaint or any form of discrimination in writing,” she says. “It puts the employer on notice there’s a violation. They then have a duty to act, to investigate to see if there’s any credibility to the claim. Put the ball in their court; their failure to act on that is liable.”

You can initiate with a verbal complaint, but one in writing is preferable, as it gives a timestamp and a more concrete form of evidence. The stronger the evidence—be it documents, recordings, and/or testimony from colleagues—the stronger your case. 

Before bringing a federal lawsuit, an employee—or their attorney—must file a charge with the EEOC. After 180 days, a “Notice of Right to Sue” can be requested from the EEOC; once that is issued, a lawsuit can be filed. Because age discrimination can cause problems ranging from insomnia to depression, damages can go beyond loss of income.

Some complaints are resolved in a matter of months.

Find Experienced Legal Help

Matura notes that businesses are often insured against age discrimination cases. “If you have great smoking-gun evidence, she says, “typically you can resolve it pretty quickly.”

If you have concerns about age-based discrimination in hiring practices or employment decisions, visit the Super Lawyers directory to find an experienced discrimination law attorney.