Legal Guide to Age Discrimination In The Workplace in 2019
What is age discrimination?
According to the United States EEOC (Equal Employment Opportunity Commission), age discrimination is treating applicants or employees less favorably because of their age. Age discrimination in the workplace is forbidden in the ADEA (Age Discrimination in Employment Act). According to the ADEA, age discrimination is applicable to older persons only (persons aged 40 and above). Although there are states in the U.S. with laws protecting younger workers from being discriminated based on their age, it isn’t illegal for employers to favor older workers over younger ones even when both workers are aged 40 or above.
Age discrimination legislation in the U.S. dates back to 1967 when congress passed the ADEA to offer workers specific employment protections. The law is applicable to employers who have a workforce of 20 or more employees. The ADEA prohibits age discrimination at all employment levels from hiring and recruitment to employment relationship and decisions for termination or layoffs.
Age discrimination in workplaces statistics
During the 50th Anniversary of the ADEA in June 2018, the EEOC released a report with the latest age discrimination statistics in US workplaces.
Age discrimination by perception
According to the report, 60% of workers in the US aged 45 and above have experienced age discrimination in workplaces and view it as a common occurrence and hindrance to finding work. Over 50% of older workers in the US are forced out of formal employment before they reach their retirement age
According to the EEOC report, African Americans report the highest rate of age discrimination in workplaces at 77%, followed by Hispanics at 61% and Whites at 59%. In regards to gender, women suffer age-related discrimination in workplaces more than men.
Age discrimination by industry
In regards to industry, workers in the IT industry and fields witness more discrimination than workers in any other industry or field. A record 40% of tech workers aged 40 and above worry about being terminated because of their age. In fact, such workers view their age as a liability.
Age discrimination reporting
Although most older workers have been victims or witnessed age discrimination in workplaces, there is serious underreporting of such cases. Just 3% have made complaints through formal channels in their workplaces or through government agencies.
Charge filing statistics
After the ADEA was enacted in 1967, age discrimination charge filings with the Department of Labor ranged from 1,000 to 5,000. In 1979, when the EEOC became responsible for enforcing the ADEA, charges increased drastically in subsequent years with the most significant increase (67%) taking place in 1983.
In 2008, ADEA charges reached 24,582 – an all-time high. In 2018, there were 16,911 charge filings under the ADEA, 4.6% of which ended in settlements with total monetary benefits amounting to $77 million. In the past decade, years 2006 and 2007 saw the highest settlements on total charge filings at 10% and 11.1% respectively. The above statistics don’t include cash/monetary benefits through litigation.
Types of age discrimination
Age discrimination in workplaces ranges from subtle prejudices to discriminatory policies and blatant mistreatment. The most common types of age discrimination in workplaces throughout the United States are the following:
- Denied promotions or raises
- Unfounded performance issues
- Discriminatory policies
- Age-related job advertisements and notices
- Workplace Stereotypes
Unwelcome comments or jokes about your age can constitute harassment if they originate from your employer. If your boss refers to you as old and you don’t like it but choose to go along with it, you should record such instances i.e., the names of parties/people involved (including witnesses), dates, places, time and the comments.
Unwelcome repeated age-related comments in workplaces that make you miserable and uncomfortable constitute harassment even if they don’t affect your income. If the incidences result in a demotion or dismissal, it’s a clear case of age discrimination.
II. Denied promotions or raises
If you are denied a promotion you expected or felt should be rightfully yours since you were more experienced and/or qualified than the younger person who got the promotion, you have grounds for an age discrimination case. If your performance is excellent or up to company standards for getting a raise and you stop getting raises while younger colleagues are getting them, you also have grounds for an age discrimination case.
III. Unfounded performance issues
Performance reviews accurately reveal employee performance. If you have been performing well consistently but notice a sudden negative evaluation without an explanation, this could be age-related discrimination. Unfounded performance issues are usually justified by flimsy reasons. They tend to occur when employers are trying to frustrate older employees.
IV. Discriminatory policies
Companies must have policies that apply to everyone regardless of age. However, some company policies or practices can differ from one age group to another based on factors that are considered reasonable (RFOA). If new policies have a negative impact on employees aged 40 and above and aren’t based on reasonable factors, the policies can be deemed to discriminate against older workers.
V. Age-related job advertisements and notices
According to the ADEA, it’s illegal to include age-related preferences, specifications, or limitations in job advertisements and notices in the US. If mentioned, age should be a critical factor in the normal operations of the business. Although many job opportunities online have age-related preferences, such preferences should be inadvertent; otherwise, they can constitute age discrimination.
VI. Workplace Stereotypes
If your younger boss makes you feel awkward with perceptions that you aren’t tech-savvy or can’t keep up with younger colleagues, such perceptions are based on discrimination. They are illegal if your pay, benefits, promotion opportunities, training, access to projects as well as salary is affected negatively.
If older workers are being terminated while less qualified, but younger workers keep their jobs, there may be grounds for age discrimination. Favoritism extends to being excluded from meetings or assignments where younger co-workers are involved. If younger co-workers seem to be getting better assignments, leads, equipment, etc., you could be a victim of age-related discrimination in the workplace.
NB: There are other types and instances that qualify as age-based discrimination in workplaces. If you feel discriminated against in any way because of your age, document the cases as discussed above. It’s also worth noting that age discrimination can be categorized in many other ways including the stage at which the discrimination takes place such as during hiring, employment relationship, decisions for termination or layoffs, etc.
Age discrimination laws
The ADEA of 1967 is the main age discrimination law in the US. As mentioned above, the law protects US workers aged 40 and above from all age-related discrimination. The EEOC is the body charged with the responsibility of enforcing the ADEA.
The Age Discrimination Act (ADA of 1975) is enforced by the CRC (Civil Rights Center). The law prohibits discrimination based on age in activities and programs that receive federal financial assistance. However, certain age distinctions can be used provided they meet the Act’s guidelines.
Workforce Investment Act (WIA) of 1998, Section 188 prohibits discrimination against employees, applicants, and WIA participants Title I financially assisted activities and programs. The CRC also enforces this law.
Fair Employment & Housing Act: This law, also known as FEHA, protects employees in California alongside the ADEA. Since both laws differ in some aspects like; the scope of protections offered to employees, employers are usually bound by the law offering higher protections. In a scenario when an employer has less than 20 employees, The FEHA will apply since the ADEA covers employees who work in organizations with 20+ employees. The FEHA applies to employers with five or more employees.
How to prove age discrimination in the workplace
Step 1: Understand age discrimination
The above information highlights the basics of age-related discrimination law in the US and gives specific scenarios warranting a case. If you live in the US, you are protected by law under the ADEA from age-based discrimination in the workplace. If you live in states such as California, you have additional protection from state laws like the FEHA. Understanding age-related discrimination and applicable law/s in your jurisdiction is a starting point to proving discrimination in court or to the relevant government agency to receive.
Step 2: Gathering evidence
Proving age discrimination is easy if you have a history of good performance reviews. Most age-related discrimination cases are solved using circumstantial evidence, and winning is harder if there are legitimate concerns/issues raised recently about your performance.
After collecting your performance reviews, document instances of discrimination i.e., negative comments regarding your age, as well as the time, date, place, and witnesses present, if any. If the negative comments were made via email, print the email/s in question. If you are documenting instances of denied promotions, document the name/s and age/s of promoted or hired persons as well as other helpful information like experience and academic qualifications.
It is also useful to document past discrimination lawsuits against your employer, if any, to prove a pattern. Past lawsuits can uncover confidential policies or statistical evidence that proves useful in your case. Such information can be found in federal court case files which are readily available online.
Step 3: Reporting the discrimination
You can file a charge (complaint) with the EEOC or any equivalent state agency depending on your jurisdiction.
Important: State agencies offer more protections to employees/workers than the EEOC. You may also be forced to report via a state agency if federal laws don’t apply to your line of work or employer. Examples of such instances, as mentioned above, include; if you work in a company with less than 20 people. It’s also worth noting that filing a charge with a state agency results in an automatic filling with the EEOC and vice versa.
You can visit the nearest field office in person if you choose to report the discrimination through the EEOC field offices. Alternatively, you can send the EEOC a letter including your name, address, phone no., employer details, and include a short description of the event/s and your signature.
When filing through a state agency, the process varies depending on the state. In California, you need to file a pre-complaint inquiry first by calling, completing an online inquiry form and then emailing it the contact center.
Step 4: Proving discrimination at trial
You can file a lawsuit 60 days after filing a charge with the EEOC. If the EEOC investigates, you have 90 days (after investigations are concluded) to file a lawsuit. You need to present evidence, such as documentary exhibits and witnesses in court. You need a workplace discrimination attorney during this step. You can also hire an attorney earlier such as during or when gathering evidence to increase your chances of success. Legal representation is important for many reasons ranging from giving legal advice to examining evidence and preparing witnesses. Preparing witnesses is crucial to give your case credibility. In case a witness is hesitant, your attorney can compel them using a subpoena obtained from a court clerk.
Proving disparate treatment & disparate impact
To win an age-related discrimination case, you must prove disparate treatment and impact. Disparate treatment means you were intentionally discriminated/treated differently because of age. To prove disparate treatment, you must show you suffered negative employment action which was not subjected to younger co-workers. After proving this, your employer should give a compelling reason proving that their action/s weren’t discriminatory. If they do, you have to prove that their compelling reason is a pretext.
To prove disparate impact, you need to show that your employer used a neutral policy that resulted in a negative impact on older employees. Statistical evidence is important when proving disparate impact. When you prove disparate impact, your employer must show how their action was due to a reasonable factor/s other than age. For instance, if you were subjected to a physical fitness exam that is required for employment in certain fields, this can be treated as a legitimate purpose for subjecting employees to physical tests. If you are subjected to a physical exam in an industry that doesn’t require one i.e., IT industry, such a reason may be considered to serve an illegitimate business purpose since such industries don’t depend on physical fitness of employees. Important: Proving age discrimination in the workplace isn’t as straightforward as discussed above. The charge filing statistics highlighted above put the highest settlement on total charge fillings in the past decade at 11%. This shows how easy it is to lose a case. The importance of hiring an age discrimination lawyer immediately can’t, therefore, be overlooked.