Age Discrimination

Age discrimination occurs when an employer treats an applicant or employee less favorably because of the individual’s age.

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To prove age discrimination an employee must show that a negative action such as a demotion or firing was on the basis of the employee’s age. The Age Discrimination in Employment Act (“ADEA“) forbids age discrimination against people who are 40 or older.

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Yes, job applications can ask applicants for their date of birth or year of graduation from high school or college. However, how the employer chooses to use this information may violate the ADEA.

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AARP, Aging for Life, Unretire Yourself, and HelpAge advocate for older individuals in the workplace. These organizations provide tips and advocacy opportunities for individuals to combat ageism and age discrimination in the workplace.

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Yes. The federal law which protects against age discrimination is known as the Age Discrimination in Employment Act (“ADEA”). Workers age 65 and older may also be protected by the federal Americans with Disabilities Act (“ADA”).

Yes. The CDC has noted that individuals age 65 and over are at a higher risk for development of a severe case of COVID-19, should they contract it. Therefore, the CDC has encouraged employers to offer maximum flexibility to individuals age 65 and older.

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For those who may believe they are the target of age discrimination, the ADEA considers the following to be warning signs:

• Younger Workers: A company has a pattern of firing and replacing older workers with younger employees
• Age Related Comments: Age related jokes, talks of retirement, and demeaning tones are part of the work environment.
• Job Reassignment: An unpleasant job reassignment is often a sign that a company is trying to get a worker to quit.
• Unfair Performance Reviews: If performance reviews suddenly tank, chances are a company has decided to get rid of older, more expensive workers.
• Lack of Raises or Promotions: Promotions and raises are reserved for younger, less experienced staff.

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On the federal level, the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees or applicants based on their age who are at least 40 years old. This law protects employees by ensuring that employers treat employees over and under the age of 40 years old the same. For example, employees over the age of 40 must also be eligible for the same benefits as their younger counterparts, including health insurance and retirement packages.

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Examples of age discrimination include:

• Firing or not hiring an employee because of age;
• Facing harassment or cruel behavior because of age; and
• Getting turned down for promotions or opportunities due to age

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The ADA is a federal law which is meant to protect individuals with disabilities from employment discrimination, as well as discrimination in other areas of life. The ADA applies to all private employers, state and local governments, employment agencies, and labor unions with 15 or more employees.

Employees age 65 and older may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. If this is true, these employees may request reasonable accommodation for their disability rather than their age.

The ADEA is a federal law which prohibits employment discrimination against individuals age 40 and older. For example, the ADEA would prohibit an employer from intentionally excluding an individual from the workplace based on his being 65 years or older. This prohibition would hold true even if the employer acted for altruistic reasons, such as protecting the employee due to a higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include the right to reasonable accommodation due to age. However, it should be noted that employers are free to provide additional flexibility to workers age 65 and older due to their increased risk. This is not barred by the ADEA, even if younger workers are treated less favorably based on age in comparison.

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