Age bias is the discrimination against a person because of their age. Ageism is age-related bias, usually negative, against older people, people in their middle years, teenagers, and children. In the workplace, age bias against older people is becoming more prominent. With the baby boomer generation progressing in years, and the influx of younger adults in industries such as technology, age bias is a serious problem.

Intentional age discrimination occurs when a person is singled out and discriminated against because of his or her age. Unintentional age discrimination can occur in situations such as a company-wide policy to cut benefits, downsizing, or a dress code that encourages employees to look youthful.

What is the Age Discrimination in Employment Act (ADEA)?

The Age Discrimination in Employment Act (ADEA) was passed in 1967 with the purpose of protecting individuals over the age of 40 against age-based discrimination. Under the ADEA, employers cannot discriminate in the recruiting, hiring, firing, or promoting of employees, based on their age.

What is the Older Workers Benefit Protection Act?

The Older Workers Benefit Protection Act (OWBPA) prohibits employers from using age as a basis for considering benefits and retirement. Applicable to employees over the age of 40, the OWBPA is designed to create equality between younger and older employees.

What is the Equal Employment Opportunity Commission (EEOC)?

The Equal Employment Opportunity Commission (EEOC) was created to enforce federal laws that protect employees from being discriminated against based on age, race, color, religion, sex, national origin, disability, or genetic information.

Employees who have been discriminated against should first file a claim with the EEOC. The Commission will then investigate the claim and attempt to mediate. But if the investigation is closed and the EEOC was unable to act on the employee's behalf, then a Notice of Right to Sue will be issued to the plaintiff, who can then file a lawsuit against the employer.

Are There Any Defenses an Employer Can Use?

The most readily apparent defense that an employe can use against a claim of age discrimination, is that the employee’s discipline or discharge was for good cause, and was non-discriminatory.

Another defense an employer may use against claims of age discrimination is a bona fide occupational qualification. A bona fide occupational qualification occurs when the nature of a job requires some candidates to be excluded from employment.

For example, airlines have a mandatory retirement age for pilots because of safety reasons. Excluding this protected class of people is legal, when there is a bona fide occupational qualification.

If an employer can show that an employment practice or policy is based on a reasonable factor other than age, then the policy won’t be found discriminatory.

For instance, if younger employees are paid more because of higher education, this may be a defense against a claim of discrimination as to why older employees are paid less.

State Age Bias Laws

Many states have passed their own age bias laws, some of which offer more protections than federal law. For instance, federal law limits compensatory and punitive damages a person can recover. These limits vary, and are based on the size of the employer.

In contrast, some states do not enforce their own limits on how much can be recovered in an employment discrimination case. Each state varies in its laws, and an employment attorney can assist in determining caps on compensatory or punitive damages.

Do I Need a Lawyer?

Age bias and discrimination due to age can be very difficult to prove. In most cases, employers can cite another reason as to why they are unable to hire an older employee that has nothing to do with age. However, if there is any documentation/evidence that age was a serious, if not defining, factor as to why you were rejected or fired then it is possible that you have a claim for age discrimination.

If you have experienced age-related discrimination, you should speak with an employment attorney near you. Your lawyer will advise you of your rights, provide guidance throughout the legal process, and will also represent your best interests in court.