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Age Discrimination in the Workplace

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Paul R. Bedard, EsquirePaul R. Bedard, Esquire

Charges of age discrimination represent a significant portion of complaints filed alleging workplace discrimination. Age discrimination occurs when an employer treats an applicant or employee less favorably based upon the person's age.

According to AARP, the following statistics apply to workers between the ages of 45 and 74:

  • 19% say they have been turned down for a job due to their age;
  • 12% say they have missed out on a promotion due to their age;
  • 72% of women say they believe age discrimination is present at work;
  • 57% of men say they believe age discrimination is present at work.

The Age Discrimination in Employment Act of 1967 (ADEA) is a federal law that protects applicants and employees 40 years of age and older from employment discrimination based on age. The ADEA applies to private employers with 20 or more employees, the federal government, state and local governments, employment agencies, and labor organizations.

The ADEA prohibits age discrimination in any aspect of employment including hiring, firing, promotions, layoffs, training, benefits, job assignments and any other term or condition of employment. Retaliation is also prohibited by the ADEA, making it unlawful to retaliate against someone for filing an age discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under the ADEA.

The ADEA also protects employees from being subject to harassment based upon age. Although isolated comments or simple teasing may not give rise to a viable claim of harassment, harassing conduct becomes illegal when the frequency or severity of the conduct results in a hostile or offensive work environment or when the challenged conduct adversely affects the victim's employment. The victim's supervisor, co-worker, clients, third-party contractors, and conceivably, anyone else with a presence within the victim's work environment can qualify as the harasser.

The ADEA does not make it illegal for an employer to inquire about an applicant's age or date of birth. However, absent a rare circumstance where age can be shown to be a bona fide occupational qualification, it is generally unlawful for an employer to include age preferences or limitations in job postings.

Although employees have clear federal protection against age discrimination under the ADEA, meeting the threshold of proof required to prevail with a federal claim of age discrimination can be challenging. In 2009, the Supreme Court weighed in regarding the burden of proof required to prove that age discrimination has occurred and held that a plaintiff bringing a claim under the ADEA must prove by a preponderance of the evidence that age was the "but-for" cause of the challenged adverse employment action. In other words, the employer does not need to show that it would have taken the employment action regardless of the employee's age, even when evidence exists suggesting that age was a motivating factor in the employment decision. Rather, the evidence must show age was the "reason" for the challenged action of the employer and not simply "one of the reasons" for the employer's decision.

It is valuable for an employer to be able to objectively assess whether age discrimination is transpiring within the organization in order to address any such discrimination and to work towards avoiding it in the first place. Some of the signs of possible age discrimination in the workplace include the following:

  • When an employer regularly harasses an employee about their age, such as jokes and name-calling, creating a hostile work environment.
  • When an employer has a pattern of hiring only younger employees despite otherwise equal qualifications.
  • When an older employee has a clean personnel file, and/or a history of strong reviews, yet is suddenly put on an employee improvement plan.
  • When younger and otherwise equally or less qualified employees are being promoted before older employees.
  • When layoffs occur that disproportionately or inexplicably impact older employees.
  • When an older employee's job is "eliminated," but the older employee is replaced with a younger employee within the same work capacity albeit with a different title.
  • When older employees are selectively isolated from meetings or left out of major decisions.
  • When similar employee issues are addressed by the employer with more severe consequences for older employees versus younger employees.

To avoid the occurrence of age discrimination or any other form of discrimination within your workplace, undertake a thorough review of your employment practices to verify that discriminatory practices and conduct are not present. During this assessment:

  • Review your recruitment and hiring practices.
  • Analyze your performance evaluations, promotion policies, disciplinary guidelines and termination procedures.
  • Review job postings and descriptions.
  • Provide training on how to spot and avoid age discrimination while onboarding employees.
  • Provide ongoing training throughout the employment relationship. Maintain records of this training. It will prove valuable should you be on the receiving end of a discrimination complaint.
  • Formally detail your policies within your employee handbook and have all employees sign acknowledgments of these policies.
  • Establish neutral and objective criteria for performance expectations.
  • Foster a culture that encourages employees to treat one another with professionalism, respect and dignity regardless of age.

As with other meaningful corporate values, leadership must walk the walk and talk the talk here. Although the ADEA does not apply to employers with less than 20 employees and does not offer any protection to those under the age of 40, varying state laws apply to employers with fewer employees, and some states have laws that protect people at any age from age discrimination, including young people from reverse age discrimination. Therefore, any applicable laws in addition to federal law need to be evaluated against current policies and practices to ensure that illegal age discrimination is not present within the organization. This can be a complicated evaluation and best practices, therefore, dictate the proactive engagement of qualified legal counsel.

This article is not intended as legal advice. Please consider these comments as an educational guide when you consult your attorney for specific direction.

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