Age-based discrimination in the workplace is not uncommon and can occur in many different ways. Often, employees are passed up for promotions, suffer unwarranted comments and harassment, or are denied employment due to their age – but it does not stop there. Regardless of the tactics used to discriminate, there are laws protecting employees from such actions.
In fact, the Age Discrimination in Employment Act (ADEA) of 1967 protects employees and applicants who are age 40 or older from age-based discrimination in;
- Conditions or privileges of employment
However, proving a discrimination case based on age is not always straightforward. If you believe you have been the victim of age-based discrimination, here is what you need to know to help prove your case.
5 Ways to Prove Age Discrimination
Derogatory and/or offensive remarks about an individual’s age becomes illegal when it is so intense or severe that it creates a hostile work environment or facilitates an adverse employment decision such as being demoted or fired. Harassment can come from a supervisor, co-worker, or even a client or customer.
If you’re experiencing harassment, be sure to document your experiences, including date, time, type of harassment and who was the perpetrator. Also, file a report with your human resources department and keep any documentation provided during the process. If the harassment is not resolved or you lose your job, be sure to contact an experienced employee rights attorney to review your case. Often, consultations are confidential and free.
Example: Imagine you are regularly subjected to remarks about your age during team meetings, where comments such as ‘maybe it’s time to retire’ or ‘this might be too technologically advanced for you’ are made by your supervisor or colleagues. In situations like this, it’s crucial to record each comment with as much detail as possible.
If you have been experiencing unexplained disciplinary measures at work, this may be an indication of age discrimination. For example, if a young co-worker performs similar actions without getting written up, your employer could be targeting you because of your age.
It is important to keep and secure all documentation regarding any disciplinary actions should you choose to pursue a case against your employer. If you are not provided documentation, request it from your supervisor and/or Human Resources Department for your records.
Example: Consider a scenario where you receive a formal warning for arriving a few minutes late to a meeting, despite it being a rare occurrence for you. However, you’ve noticed younger colleagues frequently arriving late to meetings without any reprimand or mention. It’s essential to document each instance, noting the date, the specific disciplinary action taken, and any comparable situations involving younger employees who were not similarly disciplined.
Occasionally, blatant cases of age discrimination will occur. If your boss tells you directly that you are being fired because you are too old, that is against the law. If you receive emails or letters that directly reference your age, make sure to keep them and any other evidence you may have when you consult an employment law attorney. This type of direct evidence holds a lot of weight when it comes to private negotiation, mediation, and trials.
Example: Imagine a situation where during a performance review, instead of focusing on your work achievements or areas for improvement, your manager comments, ‘We’re looking to bring in fresher faces with more energy and up-to-date skills. It might be time for you to consider stepping aside for the younger generation.’ Such statements, especially if made in writing, such as through an email or an official performance review document, provide compelling evidence of age discrimination.
Hiring & Promotions
Age discrimination is forbidden by the ADEA throughout the hiring process. From the interview to the selection process, age should not be an issue in being hired. This is also true in regards to promotions as well. Were you better qualified for a promotion and a younger person was selected for the position? This could be another way to prove age discrimination.
Being passed up for a job based on your age is harder to prove, but it can be done. There are 3 ways to prove you were denied employment because of your age:
- Direct evidence – The person conducting the interview makes age-related comments that are biased, such as “How long do you plan on working?” or “How old are you?”. In some cases, they may state you are “too experienced” and are looking for younger applicants.
- Disparate treatment – The employer hired another employee despite the fact you were the most qualified for the position. Should this occur, the employer would be responsible for proving they did not deny you employment based on your age, but for another legitimate reason.
- Disparate impact – Some employers will unintentionally list hiring requirements that would disproportionately impact older employees.
Example: Imagine a situation where during the final round of interviews for a managerial position, the hiring manager questions not your qualifications or experience, but rather hints at your longevity with the company by asking, “Given your extensive career, how much longer do you see yourself in the workforce?” It is paramount to record instances such as these.
Exclusion can be a more subtle approach to age discrimination, but that doesn’t make it any less wrong. Have you noticed a pattern of not being included in training programs or conferences, weekly lunches, or company events? Your employer may be trying to push you out of your position due to your age. Keeping records of these types of exclusions is central to proving a case.
Comprehensive areas that the ADEA provides protection for include:
- Advertisements and Job Notices
- Apprenticeship Programs
- Pre-Employment Inquiries
Example: Imagine you’ve been working in your company for over two decades, consistently receiving high marks on your performance reviews. However, over the past year, you’ve noticed a troubling trend: you’re no longer being invited to key strategic meetings, nor are you included in specialized training sessions aimed at adopting new technologies or methodologies. Recording these exclusions is crucial.
FAQs on Age Discrimination in the Workplace
We will now answer some frequently asked questions about how to prove age-based discrimination in the workplace.
How can I prove age discrimination in hiring?
Proving age discrimination in hiring can be challenging but is possible through direct evidence, such as age-related comments during interviews, disparate treatment evidence showing a pattern of hiring younger employees despite older candidates being more qualified, and disparate impact evidence where policies disproportionately affect older candidates.
What remedies are available if I’m a victim of discrimination?
Remedies can include reinstatement to your job, receiving back pay, compensatory damages for pain and suffering, punitive damages in cases of willful discrimination, and coverage of legal fees. The specific remedies will depend on the details of the case and the extent of the discrimination experienced.
Can I be asked about my age during a job interview?
While it’s not illegal for an employer to ask about your age or date of birth, such questions can be indicative of age discrimination. Employers have legitimate reasons for asking for a date of birth post-hire, mainly for background checks or benefits administration, but age should not be a factor in the decision-making process during hiring.
What should I do if I believe I’m facing age discrimination?
If you suspect age discrimination, start by documenting all incidents that support your belief, including dates, times, witnesses, and any comments made. Then, report these incidents to your HR department according to your company’s policies. If the situation does not improve, you may want to consult with an attorney who specializes in employment law.
Work With an Attorney
If you believe you have been discriminated against due to your age, then speak with an attorney to assert your rights and get your career back on track. Wenzel Fenton Cabassa, P.A. office offers a free, confidential consultation at offices in Tampa and throughout Florida.
Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.