What is Age Discrimination?

And how to fight ageism in employment

By Canaan Suitt, J.D. | Last updated on October 2, 2023 Featuring practical insights from contributing attorney Nina T. Pirrotti

Use these links to jump to different sections:

Most employees in the United States work at will, meaning they can quit their job at any time or for any reason. Likewise, their employer can terminate them at any time and for any reason.

However, there is a huge caveat to the general principle of at-will employment: Employers cannot take any adverse employment action, including termination, for illegal reasons. Notably, employers cannot make employment decisions for discriminatory reasons—whether in the hiring process, making job assignments, evaluating job performance, or choosing to terminate.

One major area of employment discrimination is age-based discrimination. According to the American Association of Retired Persons (AARP), approximately one-third 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.

What legal protections exist for older employees? If you have experienced age discrimination, what steps can you take to address it? This article will introduce your options and the importance of seeking legal help.

Age Discrimination Laws Protect Older Workers

The Age Discrimination in Employment Act (ADEA) is a federal law that protects 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;
  • 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.

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. If you want to bring a lawsuit for age discrimination under federal law, you will first have to file a discrimination charge with the EEOC. Unlike other discrimination claims, you don’t need a Notice of Right to Sue from the EEOC in order to file a lawsuit, but you do have to submit a charge with the EEOC.

Under state anti-discrimination laws, the requirements and timelines to sue will vary. 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. 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.

Nina T. Pirrotti

How Do I Know if Age Discrimination is Happening?

“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?”

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.”

What Should I Do to Fight Age Discrimination?

“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.”

Why is it important 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.”

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. To learn more about this area of law, see our overview of discrimination law and related content.

What do I do next?

Enter your location below to get connected with a qualified attorney today.
Popular attorney searches: Civil Rights Employment & Labor

State Discrimination articles

Related topics

Find top lawyers with confidence

The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.

Find a lawyer near you