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A Primer on Age Discrimination in the Workplace


Age discrimination in the workplace continues to be an issue in our country despite increased media attention. June of 2018 marked the 50th anniversary of the Age Discrimination in Employment Act (the ADEA). Still, age discrimination remains a reality for many older workers today. The EEOC has reported that “[t]he largest and most recent field study of age discrimination in hiring was conducted in 2015 and involved over 40,000 applications for over 13,000 jobs in 12 cities across 11 states.”

The study showed that both men and women ages 64 to 66 years old were more frequently denied job interviews than middle-age applicants, ages 49 to 51 years old. Since these issues still exist, it can be helpful to review the protections afforded by the ADEA to ensure that your rights are not being violated.

What is Considered Age Discrimination in the Employment Context?

When an employer treats employees or applicants less favorably because they are older than others, that can be unlawful discrimination. The ADEA prohibits employers from discriminating against individuals who are age 40 or older. It is not unlawful, on the other hand, to treat older workers more favorably than younger ones, even if both are over the age of 40.

What Types of Favorable Treatment are Prohibited?

The ADEA forbids age discrimination with regard to every aspect of employment, including hiring, termination, job assignments, job advertisements, layoffs, training, and fringe benefits. Harassment based on age is also unlawful, even when the harassment comes from clients or customers of an employer.

What Types of Claims are Recognized Under the ADEA?

The ADEA protects employees who are 40 years of age and older. There are three different categories of claims that can be brought by employees covered under the Act. These claims include disparate treatment, disparate impact, and harassment. These are very distinct types of claims that require different types of evidence to prove them.

Disparate Treatment Claims Under the ADEA

Disparate treatment claims require proof discriminatory motive. Consider this example: a business hires an inexperienced 25-year-old over a 49-year-old expert computer analyst with superior qualifications. That hiring decision could very possibly violate the ADEA. Another example would be a construction business that only offers training to the younger employees so they can work the more lucrative positions but refuses to train a 42-year-old employee.

Disparate Impact Claims Under the ADEA

Disparate impact claims arise when an employer’s policy appears to be neutral on its face but actually has an adverse impact or effect on individuals who are age 40 or older. The difference in these claims from disparate treatment claims is that these focus on the consequences of a particular employment policy or practice and do not require proof of discriminatory motive. For instance, an employer could implement the practice of having managers identify the least productive employees before a reduction in force. If the managers are not given any criteria for the selection process, it is possible that older workers may be disproportionately rated as the least productive employees. If that is the case, it may be the basis for a disparate impact claim. In that situation, the employer would be required to show that the resulting adverse actions are based on a “reasonable factor other than age.”

Age-Based Harassment Claims

In situations where employers, supervisors, or coworkers engage in age-based harassment that creates a hostile work environment, and that harassment unreasonably interferes with the work performance of the older employee, the older employee could have a viable claim for age discrimination under the ADEA. An example of this is when employees make repeated comments about how another employee is too old to understand the technology or newer procedures. These comments could cause the older employee to experience significant emotional distress and prevent the employee from performing their job duties appropriately.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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