What is age discrimination?
Employees and applicants can experience discrimination in the workplace in various ways, including discrimination based on age. The Age Discrimination in Employment Act (“ADEA”) does not allow discrimination against workers who are age 40 or older. Yet, many employees believe seniors are the only employees protected. The ADEA applies to employers with 20 or more employees, including federal, state, and local governments, employment agencies, and labor organizations.
Age discrimination occurs when an employer treats someone less favorably because of their age. It is important to emphasize the ADEA only protects people age 40 and older; younger employees may be protected from age discrimination through state laws. It is legal for an employer to show preference to an older employee over a younger employee, if both employees are over the age of 40. Additionally, a person may be a victim of discrimination by older employees or supervisors. For example, a 50-year-old employee could be discriminated against by a 60-year-old supervisor.
An older employee facing termination or demotion should not automatically assume age discrimination from their employer. To prove age discrimination, an employee must provide sufficient evidence that age was a significant factor in the adverse action, such as ageist comments or a pattern of age-related discrimination.
To prove age discrimination, you generally need to demonstrate the following:
- You are at least 40 years old.
- You are qualified for the position or meet your employer’s reasonable expectations.
- Your employer took negative or adverse employment action, such as termination or demotion.
- Your age was a significant factor in the negative action against you.
If you recognize a pattern of age-related discrimination from your employer, it is important to gather and document the pattern, including dates, times, and specific details of the incidents.
In which aspects are employees protected from age discrimination?
The ADEA prohibits age discrimination in all aspects of employment, including hiring, firing, training, promotions, job assignments, layoffs, benefits, and any other employment-related decisions. Common forms of age discrimination that the ADEA protects employees and job applicants from are the following:
- Job Advertisements: The ADEA prohibits age-based discrimination in job advertisements, including age preferences, specifications, or limitations. Age restrictions in job advertisements are generally illegal, unless the restriction is a bona fide occupational qualification (“BFOQ”) that is reasonably essential for the operation or safety of the business. For example, a mandatory retirement age for pilots is a valid BFOQ.
- Apprenticeships: It is illegal for apprenticeship programs, including joint labor-management programs, to discriminate against applicants because of their age. Age restrictions in apprenticeship programs may exist if the limitation falls within a specific exception permitted by the ADEA or the Equal Employment Opportunity Commission (EEOC).
- Questions Prior to Employment: While it is not illegal under the ADEA for employers to ask for an applicant’s age or date of birth, it can create a perception of age discrimination. This may discourage older applicants or employees from applying to that position, thus establishing the perception of age discrimination. Employers should only request this information if it is essential for a specific, lawful purpose, such as verifying eligibility for certain benefits or complying with age-related regulations.
- Benefits: The ADEA was amended in 1990 by the Older Workers Benefit Protection Act (OWBPA) to prevent employers from denying benefits to older employees.
What is considered age-related harassment?
Harassment can originate from various sources, including employers, supervisors, coworkers, and even non-employees such as clients or customers. The ADEA protects individuals against age-related harassment. While occasional teasing or offhanded comments generally are not considered harassment, persistent or severe ageist remarks and/or actions can create a hostile work environment and violate the law. A hostile work environment can be created from frequent or severe age-related harassment towards an older employee. They might not feel comfortable and avoid certain co-workers that create their workplace unbearable.
Here are a few examples of age-related harassment:
- Insulting or mocking an individual because of their age.
- Making jokes that are offensive or demeaning towards an older employee.
- Spreading stereotypes about older employees.
- Focusing on age-related physical or mental limitations or abilities.
What if my employer retaliates against me?
The ADEA protects victims of age discrimination from retaliation. The ADEA makes it illegal to discriminate against an individual for reporting age discrimination or harassment. This means you cannot be discriminated for filing a complaint of age discrimination or participating in an investigation of age discrimination.
If you believe you have experienced age discrimination or harassment, it is important to seek legal advice. Our firm has over 10 years of experience representing clients in employment law cases, including federal employees and non-federal employees in California.
Do not permit age discrimination or harassment to negatively impact your career. Everyone deserves the right to a respectful work environment.
