No Country for Old Workers

“We spend half our lives, or more, at the office,” says Siddhartha Rathod, an employment litigation attorney at Rathod Mohamedbhai in Denver. “When we are discriminated against at work, it shatters our fundamental identity of who we are.“

According to the Age Discrimination in Employment Act of 1967 (ADEA), anyone 40 and over is part of a protected class. Yet, says Paul Maxon, an employment litigation attorney in Boulder, citing AARP statistics, “Almost two-thirds of older workers report having experienced age discrimination.”

It can be difficult to prove, too.

“Typically,” Rathod says, “employers are savvy and don’t come out and say, ‘We fired you because of your age.’ They say, ‘We’re downsizing’; but when we look at the numbers, it turns out it’s a one-person reduction in force, 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?” he says. “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.”

Despite the large number of older workers reporting discrimination, Amy Miletich, a Denver attorney who represents companies in employment discrimination cases, notes that the most recent numbers are declining. She points out that the Equal Employment Opportunity Commission reported 18,400 charges of age discrimination in fiscal year 2017, down approximately 12 percent from the year before. Miletich believes employers may be getting more sensitive to issues of harassment and discrimination.

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

Miletich works with employers to ensure they have policies and procedures in place that can both prevent problems and remedy 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,” she says. “They want to address and remedy any issue before it turns into a charge of discrimination.”

She recommends that employees who feel discriminated against 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.”

Rathod also believes there’s a shift in thinking regarding the value older employees bring to the bottom line and to company culture. “An experienced employee can say, ‘We’ve tried that, and here are the pitfalls,’” he says. “Sometimes value comes with experience.”

For more information on this area of the law, see our discrimination overview.