What is Age Discrimination?

Age discrimination involves any case where a worker or job applicant is not treated equally in their work because of their age. Age discrimination can also involve harassing someone because of their older age. If comments about a person’s age create a hostile workplace, this generally reaches the level of unlawful discrimination. 

How Common is Age Discrimination?

Unfortunately, it’s quite common. One study has found that in situations where decision-makers knew the ages of job applicants, applicants under the age of 40 were 68% more likely to be hired than their counterparts over 40. On the other hand, in application processes where ages were hidden, older applicants were hired at the same or higher rates compared with younger candidates. 

In addition, two out of three workers over the age of 45 have reported seeing or experiencing age discrimination, according to a poll by AARP.

What Are the Reasons Behind Age Discrimination?

Age discrimination can be intentional or unconscious and can stem from bias against older people. This is known as ageism. It can also stem from employers’ beliefs that older workers have fewer current or technological skills or are less productive than younger workers, though research has shown this not to be true. 

Some employers also avoid hiring older workers because they command higher salaries, and younger workers can cost less.

What Are the Effects of Age Discrimination?

According to the World Health Organization (WHO), ageism can reduce life expectancy by 7.5 years. Age discrimination also has a detrimental effect on the financial and personal lives of older workers. An estimated 56% of workers over the age of 50 reported being pushed out of their job before retirement, and nine out of ten of these workers were not able to regain their previous earning potential. 

Nationally, keeping job opportunities from older workers could be costing the GDP $850 billion.

Are There Federal Laws Prohibiting Age Discrimination?

In the United States, the Age Discrimination in Employment Act (ADEA) prohibits discrimination against workers who are at least 40 years of age. If an employee has experienced discrimination in hiring, firing, pay, promotions, advancement, layoffs, job assignments, benefits, training, or “in any aspect of employment,” or if they have faced harassment due to their age, they may have a claim against their employer. They can seek back pay, reinstatement, front pay, and other remedies.

One important exception to the ADEA is “bona fide occupational qualification” (BFOQ), which allows workplaces to place an age restriction or limit on some jobs for safety reasons. Employers can also still terminate or demote employees if they can show they did so for a legitimate reason not related to age.

There are a few other laws that also protect against age discrimination. Under the Age Discrimination Act of 1975, this type of discrimination is illegal in activities and programs that get federal funding or assistance. This federal act applies to all ages, not just those over 40.

Under Section 188 of the Workforce Investment Act of 1998, age discrimination is prohibited for any programs and activities receiving WIA Title I financial assistance and any programs in the One-Stop system. In addition to federal legislation, states have their own laws outlawing age discrimination.

How Can You Spot Age Discrimination in the Workplace?

Age discrimination is not always obvious, but these are some signs that could point to a problem.

• Remarks about employees’ ages and them being “too young” or “too old.”
• Employees and managers making assumptions about tasks older workers can or can’t do.
• Forced retirement for jobs that don’t fall under the BFOQ exception.
• Benefits, promotions, higher salaries, opportunities, and training going mostly to younger workers.
• Newer hires are mostly younger employees.

How Can You Prevent Age Discrimination in the Workplace?

If you have a DEI (diversity, equity, and inclusion) program in your workplace, include age diversity and inclusion as part of your efforts. You can also consider the following.

• Offer mentorship programs to give all employees new opportunities.
• Keep a close eye on promotions, training participation, wage increases, and hires to make sure they are equitable.
• Have open discussions with employees about changes they would like to see.
• Put policies in place to prevent all discrimination.
• Make sure vendors, trainers, and others who work with your company come from a range of ages.
• Consider diversity and equity training to help everyone address unconscious bias. 

What Prevents Workers from Filing Worker Discrimination Claims?

Despite the laws protecting workers, in the United States, most employment is “at-will,” giving employers considerable freedom in hiring, firing, and staffing decisions. Employers are allowed to ask for an employee’s date of birth and can legally fire, demote, refuse to hire, or otherwise disadvantage workers of any age for any reason other than discrimination, even because they are “overqualified.” And in many cases, proving a decision was based only on age is difficult.

One challenge facing workers is that the Supreme Court has made decisions which have limited the ability of workers to sue for age discrimination. In 1993, the Supreme Court sided with an employer who terminated a worker shortly before retirement. In that case, the court decided that the man’s pension, which he lost due to his termination, was based on length of employment, and this meant his case did not amount to discrimination.

In Gross v. FBL Financial Services, Inc., in 2009, the Supreme Court decided that a worker had to prove that no other factor besides age resulted in his demotion. This placed the burden of proof in age discrimination cases much higher than that of other discrimination claims.

A new bill introduced in 2021, The Protecting Older Workers Against Discrimination Act (POWADA), is seeking to overturn this decision.