What Is Age Discrimination?

According to the American Association of Retired Persons (AARP), approximately one quarter of employees aged 50 or older reported hearing negative comments about a co-worker’s age within the last two years. Two-thirds believe age discrimination is a problem in American workplaces.

Legal protections exist for older employees against age discrimination. Regardless of at-will employment in the United States, employers cannot make adverse employment decisions for discriminatory reasons — whether in the hiring process, making job assignments, evaluating job performance, or choosing to terminate.

If you believe you experienced age bias that amounts to age discrimination, learn what steps to take to address it. This article will introduce your options and the importance of seeking legal help from an experienced discrimination attorney.

Defining Age Discrimination

Age discrimination involves treating an applicant or employee less favorably because of their age. It generally refers to unfair treatment of job applicants and employees who are 40 years of age and older, though some states protect younger workers from age discrimination.

Legal Protections Against Age Discrimination

Under federal law, the Age Discrimination in Employment Act (ADEA) seeks to protect job applicants and employees who are 40 years of age or older from discrimination on the basis of age.

The ADEA has a broad reach, applying to:

• Private employers with 20 or more employees;
• Federal, state, and local governments; and
• Employment agencies and labor organizations.

Employers covered by the ADEA cannot discriminate based on a person’s age in any hiring practice or employment decision. Even if an employment policy or practice applies to everyone, regardless of age, when it negatively impacts applicants or employees age 40 or over, it can still be illegal if the negative impact is not based on a reasonable factor other than age.

As with other areas of discrimination law, federal statutes provide the minimum baseline above which state laws may provide more robust legal protections against age discrimination. For example, some state anti-age discrimination laws extend protections to younger workers under the ADEA’s age threshold of 40.

When consulting with an attorney, they can help you determine whether to sue under federal or state anti-discrimination law based on the facts of your case and the legal requirements.

[If you think age discrimination is occurring], it might be helpful to start keeping an informal journal where you identify the date and the context in which the comments or conduct occurred… If you begin to see a pattern that’s not going away, that’s the time to take action.

Examples of Age Discrimination in the Workplace

Employers and job seekers can experience age discrimination in a variety of situations. “Say your boss is asking how old you are, or they make a comment about how much you must be looking forward to retirement when you haven’t uttered a single word about retirement, and you have no intention of retiring,” says Nina T. Pirrotti, a discrimination and employment law attorney at Garrison, Levin-Epstein, Fitzgerald & Pirrotti in New Haven, Connecticut.

“Or say there are off-color jokes about older people not being as swift, or that they’re not good drivers, or that they’re not as tech-savvy, or any such stereotypes about older individuals. In that case, I think the thing to do is to really focus on what is making you uncomfortable about the situation,” she says. “Ask yourself: Is it just that this person and I don’t see eye-to-eye? Or is there something about how I’m being treated or the work environment I’m being subjected to that feels discriminatory?”

The following situations can result in age discrimination:

• Hiring managers passing over older workers for younger workers with less experience
• Denying older employees training opportunities, assuming that they are less likely to adapt or benefit
• Targeting older people for layoffs and terminations to reduce costs
• Assuming older employees are less technologically skilled than younger employees

Age discrimination occurs in any number of workplace situations, including unfair hiring, promotions, training, workplace interactions, or biases related to age. The EEOC provides FAQs on age discrimination that may be helpful. It provides additional examples of age-based discrimination.

Impacts of Age Discrimination

Age discrimination can have a devastating impact on older individuals and society as a whole. In addition to financial insecurity, employees who experiences age discrimination can experience anxiety, depression, and decreased self-esteem.

Workplaces can fail to benefit from age diversity and all the benefits that it brings when age discrimination occurs.

Steps To Addressing Age Discrimination

There are steps you can take if you have faced age discrimination in the workplace. “First, take it to human resources,” says Pirrotti. “Give your employer the opportunity to do the right thing by investigating the alleged incidents and taking action. Express your concerns, then follow up in writing to ensure you have a written record of the concerns you’ve expressed.”

It’s critical to give your employer an opportunity to do the right thing. “Because if you do that, and your employer ends up doing the right thing, then you can go on your merry way and continue with your job and the happiness you deserve,” says Pirrotti. “However, if they don’t, then you have made it very easy for someone like me to step in and have a lot of leverage to negotiate since opportunities were given, but they declined to take them. In fact, failure to respond to complaints can itself be evidence of intent to discriminate.”

Pirrotti adds that if you feel any uncertainty or intimidation about the process of filing a complaint with HR, “It’s never ill-advised when it gets to this point to consult with a plaintiff’s employment lawyer to be guided on how to behave behind the scenes with HR and how to respond to ageist comments that are being made or conduct that is being exhibited.”

If you think discrimination is occurring, Pirrotti says, “It might be helpful to start keeping an informal journal where you identify the date and the context in which the comments or conduct occurred. Then, look at that record over the course of a month or so. Maybe a supervisor just gave a one-off comment or had a slip of the tongue. But if you begin to see a pattern that’s not going away, that’s the time to take action.”

Filing a Discrimination Complaint With the EEOC

When taking legal action, the U.S. Equal Employment Opportunity Commission (EEOC) is the government agency that handles workplace discrimination complaints involving any protected class under federal law, including age. State and local governments also have anti-discrimination laws, which you may report to a local Fair Employment Practices Agency. They will send your complaint to the EEOC if it breaks both state and federal law.

If you want to bring a lawsuit for age discrimination under federal law, you must first file a discrimination charge with the EEOC. Unlike other discrimination claims, you don’t need a Notice of Right to Sue from the EEOC to file a lawsuit, but you do have to submit a charge with the EEOC. An experienced discrimination attorney can help you with your case.

Find an Experienced Attorney

If you have experienced age discrimination — or even if you’re unsure but have concerns that age discrimination may be happening — consider speaking with an attorney for clarification and legal advice.

Visit the Super Lawyers’ directory to find an attorney with experience navigating discrimination claims in your area.