Age bias is the discrimination against a person because of their age. Ageism is an age-related bias, usually harmful, against older individuals, individuals in their middle years, teenagers, and kids. In the workplace, age bias against older individuals is becoming more recognized. With the baby boomer generation progressing in years and the influx of younger adults in industries such as technology, age bias is a severe issue.

Deliberate age discrimination happens when a person is singled out and discriminated against because of their age. Unintentional age discrimination can happen in a company-wide policy to cut benefits, downsize, or a dress code that encourages workers to look youthful.

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

The Age Discrimination in Employment Act (ADEA) was passed in 1967 to protect people over 40 against age-based discrimination. Under the ADEA, employers cannot discriminate in recruiting, hiring, firing, or promoting workers based on their age.

What Is the Older Workers Benefit Protection Act?

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

What Is the Equal Employment Opportunity Commission (EEOC)?

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

Workers who have been discriminated against should first file a claim with the EEOC. The Commission will then analyze the claim and attempt to mediate it. But if the investigation is closed and the EEOC was unable to act on the worker’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 employee can use against a claim of age discrimination is that the worker’s discipline or discharge was for a good cause and was non-discriminatory.
Another defense an employer may use against age discrimination claims is a bona fide occupational qualification. A bona fide occupational qualification happens when the nature of a job requires some candidates to be excluded from employment.

For instance, airlines have a required retirement age for pilots because of safety motivations. Excluding this protected class of individuals is permitted when there is a bona fide occupational qualification.

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

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

What Are Bona Fide Occupational Qualifications?

Even though the Civil Rights Act of 1964 forbids discrimination in employment methods, bona fide occupational qualifications (BFOQ) are an exception. BFOQs are traits or characteristics that allow an employer to hire people based on religion, sex, age, and national origin, only if they are reasonably required for that company or organization.

For instance, a Catholic school may decide only to hire teachers of the Catholic faith. Another example would be a menswear clothing company only employing male models to model its clothing line.

How to Use a Bona Fide Occupational Qualification as a Defense

If charged with discriminatory hiring or employment practices claim, an employer may try to use a bona fide occupational qualification as a defense. The court will review this type of defense very closely; the employer must establish and confirm its validity.

Since BFOQs are narrowly interpreted, the employer must be able to:

  • Authenticate a business necessity for the BFOQ;
  • Verify that the necessity is rational and can be confirmed;
  • Establish the rationality stems from a substantial belief that all or almost all of the workers not in the suspect class do not possess the qualifications for the job; and
  • Indicate that this belief can either be confirmed or disproven with appropriate tests or that dealing with the entire excluded class would not be possible, as shown by expert testimony or widely accepted research and data.

A Bona Fide Occupational Qualification for Safety Reasons

Safety reasons may also be BFOQs for an employer’s defense against employment discrimination. As mentioned, airline pilots have compulsory retirement ages because of safety reasons. To establish a BFOQ necessity, the employer must show how it meets the goal without a better alternative and less discriminatory impact.

Some common BFOQs are:

  • Able to lift a specific amount of weight (ex: able to lift 30 lbs);
  • Able to sit for hours at a time at a desk; or
  • Able to stand for hours at a time.

These qualifications are standard requirements for an office position or a food server.

State Age Bias Laws

Many states have passed their own age bias regulations, some of which offer more protection than federal law. For example, federal law restricts compensatory and punitive damages a person can recover. These limits differ and are based on the size of the employer.

In contrast, some states do not enforce their limits on how much can be recovered in an employment discrimination case. Each state differs in its regulations, and an employment lawyer can help determine caps on compensatory or punitive damages.

What Is Considered Employment Discrimination?

Employment discrimination may occur when an employee (or potential worker) is treated less approvingly than other similar workers solely because of specific characteristics. These characteristics or backgrounds are protected by law and may include their age, sex, gender, religion, disability, or other classes.

Employment discrimination can also occur when one group of workers is treated better than another based on protected classes or categories defined by various laws. An example of this is where one group of workers obtains benefits denied to others based on their sex.

Such discrimination generally happens when a person is already employed. However, it can also occur when a person is still seeking employment (such as when they aren’t hired because of a particular religion).

What Else Is Prohibited by Employment Discrimination Laws?

It is also unlawful to treat one group more favorably over another based on protected categories. For example, it would be unlawful to give a higher salary to one group over another group of employees solely based on their race. This is particularly true if both groups are conducting the same tasks.

Employment discrimination regulations are also expanding to include more different categories and classes. Particularly, sexual orientation and gender identity are increasingly regarded in anti-discrimination policies and regulations.

State laws may have specific provisions that might differ from other states. For instance, California’s employment discrimination laws may vary from Texas, New York, or other states.

Do I Need a Lawyer?

Age bias and discrimination due to age can be tough to prove. In most circumstances, employers can cite another reason they cannot hire an older worker that has nothing to do with age. Nevertheless, suppose there is any documentation/evidence that age was a serious, if not defining, factor as to why you were rejected or fired. In that case, you may have a claim for age discrimination.

If you have experienced age-related discrimination, you should speak with a discrimination lawyer. Your attorney will advise you of your rights, guide the legal process, and represent your best interests in court.