What Is Age Discrimination?

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Age discrimination is adverse work treatment of an employee based on a class or category that the employee belongs to – employees over age 40 - rather than on the employee's individual merit.

People who are age 40 and older are protected from employment discrimination based on age by the Age Discrimination in Employment Act (ADEA) of 1967. The ADEA’s protections apply to both employees and to people who are applying for a job.

Age discrimination is prohibited in any term, condition, or privilege related to employment.

Age discrimination is unlawful in any phase of employment including job postings, job descriptions, interviews, hiring, salaries, job assignments, merit increases, performance management and evaluation, training, disciplinary actions, promotions, demotions, benefits, employment termination, and layoffs.

Any action that an employer takes that adversely affects a disproportionate number of employees over 40 is also age discrimination. In fact, according to the U.S. Equal Employment Opportunity Commission (EEOC), “the ADEA allows employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or younger.”

Participating in the one layoff of my career while I sought to hire an HR Director for a client company, the most significant discussion centered on how to do the layoff properly.

The attorney was concerned that no disparate treatment occurred in who was selected for the layoff.

This meant that we had to check the ages of employees, their race, gender, and all of the areas of potential discrimination. 

Because many of the employees were long-term people, age discrimination was our biggest concern.

Age discrimination lawsuits, while not as frequent as they were from 2008 to 2012 when the economy was so bad, are still high. Employers do not want to become involved with the EEOC.

The ADEA also prohibits age discrimination among employees who are older than 40. As an example, employers may not discriminate against a 60-year-old employee in favor of a 50-year-old employee.

The ADEA and its age discrimination prohibition applies to all private employers who have 20 or more employees and to Federal, state and local governments. Age discrimination is also prohibited in employment agencies and labor organizations.

More Facts About Age Discrimination

In the hiring process, requiring the age of applicants must only be for a “bona fide occupational qualification.” This means that the employer must demonstrate that age is a reasonable question essential to the operation of the business.

Employers also need to steer clear of the more subtle forms of potential age discrimination. While you may not choose to ask for age or date of birth on your employment application, doing the math based on when your prospective employee graduated is potentially discriminatory. You would discriminate if you used this information to eliminate a candidate.

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to employees over 40. There are exceptions available in certain circumstances as long as the cost of insuring older employees is the same as insuring younger employees.

In situations involving early retirement offers, employment buyouts, and other exit incentive programs for older workers, work closely with the EEOC and an employment law attorney.

According to the EEOC, “In Fiscal Year 2008, EEOC received 24,582 charges of age discrimination. EEOC resolved 21,415 age discrimination charges in FY 2008 and recovered $82.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”