How to Identify and Act on Age Discrimination

The American labor market has passed a barely noticed statistical landmark: the median age of working Americans—half the working population—is 40 or older, according to the Bureau of Labor Statistics. The significance to employers is that about one-half of the work-force is now protected under the Age Discrimination in Employment Act (ADEA) that is enforced by the Equal Employment Opportunity Commission (EEOC).

Age discrimination problems have been exacerbated by the down economy over the past few years. While it is against the law to discriminate based on age, this kind of discrimination can be hard to identify and harder to prove. It can be difficult to demonstrate that someone over 40 has been let go because of his or her age as opposed to performance issues. Workers over 40 should protect themselves by keeping copies of performance evaluations to provide evidence that they have met or exceeded workplace expectations.

The fear of possible age discrimination and losing one’s job can create an uncomfortable workplace environment. Your morale may suffer and even lead to workplace depression that carries over to your personal life.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor unions, as well as to the federal government. The ADEA does not apply to elected officials or independent contractors.    

The first step in deciding whether you have been discriminated against because of your age is to understand the provisions of the ADEA. Here are some examples of potentially unlawful age discrimination:

• You didn't get hired because the employer wanted a younger-looking person to do the job.
• You received a negative job evaluation because you weren't "flexible" in taking on new projects.
• You were fired because your boss wanted to keep younger workers who are paid less.
• You were turned down for a promotion, which went to someone younger hired from outside the company, because the boss says the company "needs new blood."
• When company layoffs are announced, most of the persons laid off were older, while younger workers with less seniority and less on-the-job experience were kept on.
• Before you were fired, your supervisor made age-related remarks about you, such as that you were "over-the-hill," or "ancient."

If any of these things have happened to you on the job, you may have suffered age discrimination.

The ADEA contains several exceptions:

• Executives or others "in high policy-making positions" can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
• There are special exceptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. If these exceptions may apply to you, check with your personnel office or an attorney for details.
• The ADEA makes an exception when age is an essential part of a particular job -- also known by the legal term "bona fide occupational qualification" or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen's clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ.

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. As a result, the following practices are also illegal:

• An employer cannot retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
• An employer may not include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a BFOQ reasonably necessary to the essence of the business.
• Apprenticeship programs, including joint labor-management apprenticeship programs, generally may not discriminate on the basis of an individual's age.
• Nothing in the ADEA specifically prevents an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information are closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

If you feel you have been discriminated against because of your age, first consult your state’s laws against age discrimination. The EEOC provides for a 180 day period to file an age discrimination claim that may be extended to 300 days under state laws.

Age discrimination is a problem that will only increase over time because of the aged population in the U.S. Employers may be hurting their own interests in the long run when discriminating because of age because older workers have experience that can’t be matched by younger workers. Moreover, it’s been my experience as a college professor that older workers often have a stronger work ethic than recent high school and college graduates.

Discrimination based on age is different than other forms of discrimination because it can affect each and every one of us. It affects people at a time in their lives when they are most vulnerable. From an ethical perspective it is an unfair practice; uncaring; and lacking in empathy. The Golden Rule says we should treat others the way we want to be treated. Employers should use it the next time they contemplate letting an employee go based on age considerations.

Blog posted by Steven Mintz, aka Ethics Sage, on January 31, 2012