The Facts About Age Discrimination

The Facts About Age Discrimination

by Brette Sember, Esq., August 2016

Yes, age discrimination is illegal, but it continues to be a problem in the workplace. Understanding exactly what constitutes age discrimination—and what to do about it—are important for both older workers and younger workers alike.

What is Age Discrimination?

Age discrimination in the workplace happens when a worker is treated differently because of his or her age.

Workplace age discrimination includes hiring, firing, giving different responsibilities, giving different compensation, offering different projects or opportunities, harassing someone, or treating them differently because of their age.

Although we tend to hear more about age discrimination and the older worker, it can happen to anyone—whether they are older, younger, or middle-aged.

Examples of age discrimination include:

  • Making offensive remarks about an employee's age: “Oh, Jim won't understand; he's too old to know the latest technology."
  • Not giving employees with similar positions similar work: for example, refusing to assign a 23-year-old salesperson to an account because she is "too young to know what she is doing" and giving it instead to an older person who has the same title and work experience
  • Not hiring an older worker because the employer assumes that he or she "will want to retire in a couple of years"
  • Firing someone because of their older age
  • Not hiring someone because they are so young

Age discrimination can be tricky to pinpoint because so many employment decisions are made based on skills and experience: An older worker has more experience than a younger worker. A younger worker may have a different skill set than an older worker.

The bottom line is that discrimination happens when a decision is made based primarily on age. And when two people with similar skills are treated differently due to age, that's discrimination, too.

Age Discrimination Laws

There is a federal law, the Age Discrimination in Employment Act (ADEA), that makes ageism in the workplace illegal in companies with more than 20 employees. It applies to all employees except independent contractors, elected officials, and military personnel. It offers protection to any worker age 40 or older against discrimination based on age.

This law offers protection only to older workers and provides no protection for discrimination when the employee is younger. The law provides protection in all aspects of employment including hiring, firing, pay, promotions, layoffs, job responsibilities, benefits, and training.

The ADEA also makes it illegal to harass an employee because he or she is over 40 if the harassment becomes a pattern of behavior that creates a hostile work environment. Under this law, it is also illegal to retaliate against an employee for reporting possible age discrimination.

Because of the ADEA, employers can't list age requirements in job ads. The only age-related question a prospective employer should ask is if you're the minimum age to do a specific job, which in most cases would mean confirming that you're over the age of 18.

The federal Older Workers Benefit Protection Act of 1990 is an amendment to the ADEA that makes it illegal to refuse benefits to older employees or to fire an employee to prevent the initiation of retirement benefits.

Individual states have their own age discrimination laws as well, many of which apply to workplaces with fewer than 20 employees. In a number of states, age discrimination rules apply to any worker age 18 and older.

Are There Exceptions to the ADEA?

While the ADEA provides a lot of protection as an age discrimination law, it does allow some decisions to be made based on employees' advanced age.

For example, the law permits companies to force high level executives to retire at age 65 if they're entitled to pensions above a certain amount.

There are also exceptions in age requirements for jobs like firefighters, law enforcement, tenured college faculty, and air traffic controllers. Exceptions are also made when age is essential to a job, such as an actor's role playing a child on a TV show.

ADEA Claims

If you believe you have been discriminated against under an age discrimination law in your workplace because you are over age 40, you first need to consider if what has happened is discriminatory.

Look for a pattern at your employer where older employees are frequently treated differently than younger employees:

  • Are older employees slowly being fired so younger ones can be hired?
  • Are younger employees getting the plum assignments and promotions?
  • Are job performance evaluations for older employees slowly becoming negative?

If you believe you see a pattern and think you are being treated differently because of your age, you should discuss this with your HR department. You need to report the potential discrimination and give your employer the opportunity to fix it.

The next step is to talk to an attorney about an age discrimination lawsuit. Your attorney may be able to negotiate a settlement—such as a good severance package for you—without even filing a lawsuit. You have 180 or 300 days (depending on your state), or 45 days if you are a federal employee, from the date of the alleged discrimination to file a claim with the Equal Employment Opportunity Commission (EEOC) to commence a lawsuit.

Age discrimination is a serious workplace issue and is likely a concern that is only going to increase as the U.S. workforce continues to age.

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