Learn about age discrimination from an expert.
As an employment lawyer, I've seen my share of age discrimination cases. Just recently, a potential client reached out to complain that he'd applied for a job, but the company completely ignored him. Worse, the company made it clear that they wanted to hire younger candidates. But did it actually meet the standard of age discrimination? Many workers remain confused about the definition of age discrimination and their legal protections from it.
Older professionals regularly face age discrimination at work; a 2018 AARP study found that 61 percent of surveyed workers age 45 or older either witnessed or experienced age discrimination in their workplace. However, outside of the legal profession, many professionals don't know what exactly "age discrimination" means in a legal context.
So what is age discrimination? How does age discrimination harm workers? What questions are off limits in a job interview? And what meets the legal definition of age discrimination? In this piece, I'll answer these questions, pulling from my 20+ years of experience litigating age discrimination cases.
What is age discrimination?
Age discrimination means treating an employee less favorably because of their age. However, legal protections against age discrimination vary depending on your location, the size of your employer, and your sector.
At the federal level, the Age Discrimination in Employment Act of 1967 (ADEA) offers age discrimination protections. It does not cover everyone, however ‒‒ it protects job applicants and employees who are 40 years old or older. Also, the law only applies to private employers who employ 20 or more people; employment agencies and labor organizations; and federal, state, and local government agencies.
All in all, the ADEA prohibits employment discrimination based on age in different ways. Employers cannot refuse to hire a job applicant because they're too old or fire an employee because of their age. It also protects employees from age-based harassment at work.
In addition to federal protections from the ADEA, many state and local governments prohibit age discrimination. These laws may offer stronger protections than federal laws. In New York City, for example, employees benefit from state and local age discrimination laws that protect all workers over the age of 18. While federal laws only protect workers over 40, the more expansive New York laws also protect younger workers from unfavorable treatment.
What age discrimination looks like in the workplace
Age discrimination can take many forms, from laying off older workers to refusing to hire someone because of their age. That means it can start during the hiring process.
Many people experience age discrimination during job interviews. A November 2017 survey by Talent, Inc. found that nearly one in four professionals faced inappropriate questions about their age during an interview.
Age discrimination can also occur after being hired, and legislation works to prevent that; the ADEA prohibits age discrimination in promotions, layoffs, compensation, benefits, and other conditions of employment. For example, employers cannot refuse to grant tenure or promotion to an employee because they are older than other candidates. These protections also include job training. Employers cannot refuse to provide training to an employee because they are considered too close to retirement age.
In short, any occasion when an employer treats an older employee less favorably may violate the ADEA.
Calling on those state and local age discrimination laws, in several states and cities, employers cannot discriminate against younger employees either. For example, an employer cannot refuse to promote an employee to a management position because they "look too young" to be a manager.
The impact of age discrimination at work
Age discrimination can not only make it harder for older professionals to find employment, but it can also mean getting pushed out of a job. A December 2018 Urban Institute report identified a growing trend of employees pressured to retire from their jobs. In 1998, 33 percent of recent retirees reported either being forced or partially forced to retire. That number grew to 55 percent by 2014. Pressuring an employee to retire is an example of something that can violate age discrimination protections.
Stereotypes about older workers also pervade the workplace, according to Jacquelyn B. James, co-director of Boston College's Center on Aging & Work. "Ageism might affect employment experiences at virtually any stage of the employee-employer relationship," James testified in an Equal Employment Opportunity Commission (EEOC) hearing in 2017. In an EEOC report, acting chair Victoria A. Lipnic concludes, "Unfounded assumptions about age and ability continue to drive age discrimination in the workplace."
What you can do about age discrimination
From a legal perspective, there's good news and bad news about age discrimination protections. The good news is that victims of age discrimination can file a claim with the EEOC or file a lawsuit.
The bad news is that it is difficult to prove workplace age discrimination. Legally, age discrimination claims rest on a "but for" standard. This means that victims must show that "but for" their age, they would have received a job offer or not faced unfavorable treatment. Employers rarely provide such clear-cut evidence of discrimination, creating a difficult standard for employees.
Perhaps this difficulty of winning a case is part of why so few professionals report age discrimination. While it impacts millions, a 2018 AARP report found that only three percent of older workers file complaints about age discrimination. That small number includes employees reporting discrimination both internally at work or to a government agency. If you were to be one of those who files age discrimination charges, you would be protected from retaliation under another section of the ADEA. This also applies if you testify in an age discrimination case or participate in an investigation or case, so know that if you choose to take this path, you can still safeguard your future.
By understanding the scope of age discrimination protections, people can better advocate for themselves in the workplace –– whether that means reporting discrimination to your boss or contacting an employment lawyer to talk about filing a lawsuit. To protect yourself in your job search, take a look at this guide for combating ageism during your hunt.
Click on the following link for more advice for your career.
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