What is age discrimination? In the workplace, age discrimination “involves treating an applicant or employee less favorably because of his or her age.”
The ADEA, or Age Discrimination in Employment Act, prohibits age discrimination against applicants or employees aged 40 or older. This does not mean that the discriminator has to be under age 40; on the contrary, discrimination can still happen when both parties are over the age of 40. The ADEA covers employers with 20+ employees, state, local, and federal governments and government agencies, employment agencies, and labor organizations.
What parts of the employment process are protected?
The ADEA protects the following parts of employment and the employment process:
- Job Notices and Advertisements: it is generally unlawful to publish age preferences or limitations when posting job listings.
- Apprenticeship and Internship Programs: Apprenticeships can only specify age limitations if they meet certain exemptions or are granted a special exemption by the EEOC. Otherwise, it is generally unlawful to discriminate against applicants or employees of apprenticeship programs based on age.
- Pre-Employment: Although it is not specifically illegal for a potential employer to ask your age or date of birth during the hiring process, this kind of line of questioning can establish intent to discriminate.
- Benefits: The ADEA prohibits employers from denying benefits to older workers; in the past, this was common due to the increased cost to insure older workers. The exception is retiree health benefit plans with Medicare or comparable state-sponsored health care plans.
What to do if you suspect or experience age discrimination
It can be difficult to prove age discrimination. Most employers have an “at-will” employment relationship with their employees, meaning that they can fire any employee at will, at any time and for any reason. Especially when it comes to layoffs or reduction in forces, courts consider that employers want to lay off people with higher salaries, who are often older.
A landmark case, Gross v FBL, in 2009 made it more difficult for employees who lost their jobs to sue for age discrimination. Jack Gross was a vice president at FBL Financial, an insurance firm based in Iowa. Along with twelve other FBL employees, Gross was demoted. All twelve of those employees were high performers; they were also older employees. When Gross sued for age discrimination, he won his case in lower courts but eventually lost in the Supreme Court. The Supreme Court ruled that in cases of age discrimination, the plaintiff and/or their legal team must prove that the reason for discrimination was age.
This essentially raised the burden of proof for these types of cases. Before Gross vs FBL, if age discrimination was one reason for firing or demoting an employee, along with other solid business reasons, the plaintiff had a valid case for discrimination. Now, however, it must be clear that age is the reason or motive.
If you have found yourself in a situation where you are being discriminated against or have been discriminated against because of your age, there are steps you can take to protect your legal rights:
- Set up a meeting with an age discrimination attorney
- Review your local and state laws with your attorney
- If you have recently been asked to sign anything related to a severance package, you have 21 days to consider the package and seven days to change your mind, if you’ve already signed it in agreement.
- If you are still in your situation, formerly document any instances of harassment or discrimination. Send an email to yourself, using your personal email on a personal device, noting the time and date and the offending comment or behavior.
- Once your case is established, your attorney will either file an official complaint with the EEOC or help you negotiate with your employer.