The ADEA Framework for Your Protection
Age discrimination at work is illegal when you hit the age of 40. There’s a federal law that backs you up on this. Congress actually put the Age Discrimination in Employment Act (ADEA) into place way back in 1967 and they did it for a particular reason. Workers who were in their 40s and older were always running into roadblocks when they tried to get hired or move up in their careers, so lawmakers decided that 40 would be the magic number for protection to kick in.
The ADEA operates in the same way as the other civil rights laws that protect workers from discrimination. It covers just about every part of your work life that matters. Businesses can’t turn you down for a job just because of how old you are and they can’t let you go or skip over you when promotion time rolls around either. Your salary and benefits package are protected too. The law even extends to the types of assignments and responsibilities you get handed on a day-to-day basis. Federal protection doesn’t automatically apply to every workplace out there though. The company you work for (or want to work for) needs to have at least 20 workers before the ADEA kicks in and gives you that protection.
That means most medium-sized businesses and all the big corporations have to follow these laws. Labor unions have to comply too. So do employment agencies that help workers find jobs. State laws can be even better for workers than what the federal government gives you. A handful of states have decided to protect employees who haven’t hit 40 yet and some states make even small businesses with fewer than 20 workers follow age discrimination laws. California and New York have reputations for having strong worker protections in this area.
What Other Laws May Apply to Age Discrimination in the Workplace?
One of the main laws that applies to age discrimination in the workplace is the Older Workers Benefit Protection Act (OWBPA). The OWBPA amends the ADEA and provides additional protections for employee benefit plans as well as state laws that offer broader protections, including those covering workers under 40.
If both age discrimination and discrimination based on disability are happening to an individual, they may be protected under the Americans with Disabilities Act (ADA) as well as the Rehabilitation Act. Additionally, there are several presidential executive orders that may apply to discrimination as well as immigration, which include:
Executive Order Guaranteeing the States Protections Against Invasion
This order states that individuals cannot come into the United States at the southern border, including asylum seekers. However, the Department of Homeland Security (DHS) as well as the Secretary of State may be able to admit applicants on a case-by-case basis.
Executive order Protecting the Meaning and Value of American Citizenship
This order ends birthright citizenship, or anchor baby status. Birthright citizenship is when a child born in the U.S. automatically receives citizenship.
Under this order, one parent must be a citizen or permanent resident of the United States in order for a child to have birthright citizenship. If the parents are in the United States on a temporary visa, the child will not receive birthright citizenship.
It is important to note that this order is not currently being enforced because of an injunction.
Executive Order Realigning the United States Refugee Admissions Program (USRAP)
This executive order places limits on how an immigrant can seek legal entry into the U.S. Similar to other orders, applicants may be admitted on a case-by-case basis.
This order is suspended indefinitely awaiting further analysis. This means it is not being enforced currently.
Executive Order Protecting the American People Against Invasion
This order provides the policies that apply to the enforcement of unlawful presence, illegal entry, and deportation or removal of someone who is not lawfully present in the U.S. Additionally, this order seeks an expansion of expedited removal.
These executive orders and other laws discussed above can have a direct effect on an individual’s employment in addition to employment discrimination against immigrants. Because these laws can affect someone’s immigration status, they can also affect their eligibility to work in the United States.
Workplace discrimination issues may arise related to someone’s immigration status if they are treated unfairly or with prejudice because of their immigration status, protected status, or national origin. National origin discrimination occurs when a worker is unfairly treated due to being from a specific country, having a certain accent or ethnicity, or appearing to be of a certain ethnic background.
Citizenship status discrimination occurs when someone is unfairly treated due to their citizenship status or immigration status. The Immigration and Nationality Act (INA) makes it against the law to discriminate against a worker or an applicant due to their citizenship status or national origin.
A worker will be protected by anti-discrimination laws regardless of their immigration status. Both workers and employers should have an understanding of applicable anti-discrimination laws and ensure their workplace is fair and equitable.
All of these laws may be revised or even removed at any time, especially with changes in presidential administrations. Due to the numerous laws and the possible frequent changes, it is very important to consult with a local lawyer for any issues or concerns related to employment discrimination, age discrimination, or immigration.
Signs of Age Bias in Your Workplace
Age discrimination can be hard to spot because it doesn’t always match what people have in their heads. In some cases, it’s right there in front of you and, in other situations, it slowly becomes apparent that you’ve had nothing but great performance reviews for years. Job postings will sometimes specifically request ” digital natives” as candidates, or a company will suddenly announce that their most experienced employees need to be let go for no obvious business reason. When patterns like these emerge, they don’t usually happen by accident.
The IBM lawsuit pulled back the curtain on how businesses actually pull this off in practice. During discovery, lawyers found internal emails where executives referred to their older employees as a “dated maternal workforce.” That’s the exact type of smoking gun evidence that makes employment attorneys very interested in taking a case.
Anyone who’s been in the workforce for a while has likely witnessed the less obvious versions of age discrimination. Younger team members might always seem to receive invitations to professional development workshops that somehow never make it to your inbox. A manager could make regular comments about retirement plans or golf courses whenever they talk to you. Or a company might lay off all the employees over 50 in a department and then quickly post job openings for the entry-level positions. Each incident seems minor or explainable by itself. But, if you step back and look at the whole picture, the pattern gets hard to ignore.
The legal world actually splits age discrimination into two different categories. The first type is disparate treatment. This is when an employer specifically targets a person because of their age. It’s discrimination with intent. The second type is disparate impact. This is trickier because it deals with policies that look neutral on paper but that wind up disproportionately hurting older workers. Both types can certainly land a company in legal trouble. But the way that courts handle each one is pretty different.
Of course, not every bad decision that a company makes automatically qualifies as discrimination. Businesses fail, strategies change, and, sometimes, management makes legitimately terrible choices that hurt employees across all age groups equally. Businesses have the right to restructure, pivot their business model, or make questionable decisions that affect everyone. The best strategy is in figuring out when age specifically turns into the connecting factor between who gets to stay and who gets shown the door.
Build Your Evidence File
Age discrimination can be pretty hard to prove in court. The main reason is that employers almost never come right out and tell you that they’re treating you differently because of your age. Experienced employers know better than to be that obvious about it. This is why you need to know about the three main types of proof that courts will take as legitimate if you file a claim.
Direct evidence is by far the easiest type to work with in court, though it’s also the hardest to find in practice. What we’re talking about are emails where a manager specifically mentions your age in a negative context or maybe memos about replacing “older workers” with younger employees. Most employers have been trained not to put anything like this in writing anymore. That makes these cases much harder to win.
Circumstantial evidence is a lot more common here and it can be just as powerful when it’s presented correctly. Maybe your company replaced you with somebody younger who actually has less experience and less qualifications than you do. Or maybe you saw that only workers over 50 got laid off during the last round of restructuring as younger employees in similar positions kept their jobs. These patterns matter in court even if nobody ever specifically mentioned age as a factor.
Courts use what’s called the “McDonnell Douglas framework” when they review these types of cases. At first, you have to show that discrimination probably happened based on the evidence you’ve put together. Then, your employer gets a chance to explain their actions and give their own justification. At the end, you get an opportunity to prove that their explanation doesn’t actually make sense or hold up under scrutiny.
Documentation is your strongest asset, which is why tracking incidents matters. Start a log where you record anything that seems off or makes you uncomfortable. Record the date, who was present, and what took place. The more detailed the information, the better. Emails, performance reviews, and any other paperwork that you can access should all go into your file. These records can make or break a case.
Watch for comments that sound harmless on the surface. Whenever your boss brings up the need for “fresh perspectives” in the department, or when succession planning suddenly turns into a hot topic in meetings for no apparent reason, write it all down. These types of phrases usually signal age bias when the ones saying them don’t know what message they’re actually sending.
The Deadlines for Your EEOC Complaint
Age discrimination claims have a strict deadline that most employees don’t realize. You have just 180 days from the date of the discriminatory action to file your claim. Some states are more generous and will give you as much as 300 days. You should verify what applies in your jurisdiction before assuming anything. Once that deadline passes, your opportunity to take any legal action disappears permanently. The law doesn’t make exceptions for this, no matter how strong your case is.
Your first step is to file what’s called a charge with the Equal Employment Opportunity Commission (EEOC) and they’ll take care of the notification to your employer (usually within about 10 days of receiving your paperwork). Then the investigation phase begins. It typically runs anywhere from 6 months to 10 months in total. The EEOC might suggest mediation as an option before they start a full investigation. You and your employer sit down with a neutral third party and try to hash out a resolution that works for everyone.
Federal employees actually received a big win back in 2020 with the Babb v. Wilkie decision. Prior to this case, the burden of proof was much harder to meet. Now federal workers don’t have to prove that age was the sole factor in the discriminatory treatment they experienced. As long as age played any part in the choice (even if other reasons were involved too), that’s enough to make a valid claim.
Once the EEOC finishes their investigation, you’ll receive one of three possible results. First possibility: they find enough cause to believe discrimination occurred and they’ll attempt to negotiate a settlement with your employer on your behalf. Second possibility: they determine that there’s no reasonable cause and close out your case. Third possibility (and this happens fairly frequently): they issue what’s called a right-to-sue letter and you can now take your employer to court on your own.
Watch out for that right-to-sue letter if you receive one. The second it arrives, you have just 90 days to file your lawsuit in court, not 91 days and not 3 months and a week. Just 90 days. It can be helpful to circle the date on their calendar immediately and set multiple reminders.
Lots of employees worry about possible backlash from their employer after they file a discrimination claim. The excellent news is that retaliation for filing an EEOC charge is actually a separate legal violation and employers who do it could get extra penalties on top of the original discrimination claim. Write down detailed records of any negative treatment or changes in your work situation that happen after you file your charge. Even if nothing happens, having that documentation gives you reassurance and protects you if the situation worsens.
The Money You Could Recover
Age discrimination claims can lead to a few different types of financial recovery. The specifics do matter when you want to know what your case could be worth. Back pay is usually the foundation of any settlement or judgment, which are all the wages you would have earned if you hadn’t been discriminated against. Front pay also comes into play in situations where reinstatement to your old position just isn’t workable or feasible anymore. Lost benefits are certainly part of the calculation as well and include health insurance premiums, retirement contributions, stock options, and any other benefits you enjoyed before. Attorney fees are another big component and the positive news is that successful plaintiffs usually have these costs covered by the employer.
Age discrimination law has some particular features that set it apart from race, gender, or disability cases. Punitive damages are off the table in federal age discrimination claims and many plaintiffs find this disappointing. But there’s an interesting provision called liquidated damages that can double your compensatory damages, but only if you can prove the employer willfully violated the law. This means the employer knew what they were doing was wrong and did it anyway when they acted willfully.
Large corporations have paid staggering amounts to settle age discrimination claims over the years. IBM’s $250 million settlement from a few years ago certainly got everyone’s attention. Lockheed Martin had to write a check for $26 million in another high-profile case. These settlements show just how expensive age discrimination can become for businesses that systematically push out older workers.
Of course, most cases settle for far more modest amounts and most never even make it to trial. The EEOC mediation resolves a large percentage of claims and others settle shortly after a lawsuit gets filed but before any litigation begins. Courts usually prefer reinstatement as a remedy whenever it’s feasible. However, everyone involved frequently recognizes that returning to work for an employer who discriminated against you isn’t an appealing option. Front pay calculations attempt to compensate for future lost earnings. In those situations though, the amount changes quite a bit based on factors like your age, salary history, and job market conditions.
State law offers more avenues for recovery than federal law. Emotional distress damages are available in some jurisdictions. These claims need strong documentation and expert testimony to prove the extent of your suffering. The tax implications are another important consideration that many plaintiffs don’t anticipate. Discrimination settlements are usually taxable as ordinary income. A skilled attorney will structure your settlement to lower the tax burden whenever possible.
Build Your Defense Before It Starts
Age discrimination can be pretty hard to recognize. Maybe you see that you haven’t been invited to the last three strategy meetings or your boss has been slowly taking projects away from you for no obvious reason. Managers might drop hints about wanting to take the company in “new directions” or talk about bringing in “fresh perspectives” in a way that sounds like they’re actually talking about you. Pick up on these warning signs early and you have many more options for protecting yourself.
The smartest move you can make is to become harder to target. Make sure that all your professional certifications stay up to date and create a running record of everything positive that you accomplish at work. Every time a client sends a thank-you email or when a coworker compliments your work, save it somewhere safe. The same goes for any documentation about successful projects you’ve led or problems you’ve solved. This turns into your ammunition if you ever need to defend yourself against unfair treatment.
Performance improvement plans are where situations can get messy. A red flag is when your boss drops one on you with no warning after years of positive reviews. PIPs can be used to help employees get back on track. The problem is, they’re also a convenient way for employers to build a paper trail before they fire you. Take the plan at face value and do everything that it asks. At the same time, start keeping careful records about your work and any comments about age that come up around the office.
Federal law gives you even more protection. The Age Discrimination in Employment Act says that employers can’t force you to retire just because you hit a certain birthday. Yes, there are some exceptions for high-level executives and some safety-sensitive positions. But for most workers, mandatory retirement based purely on age is illegal.
Your younger coworkers can become some of your best allies at work. Build strong relationships with them and they usually pick up on age discrimination that you might not even see is happening. And if a situation ever escalates to the point where you need to file a formal complaint, these same coworkers could provide the witness testimony that backs up your experience.
Do You Need Help From a Lawyer?
It may be helpful to consult with a discrimination lawyer if you have any issues, questions, or concerns related to age discrimination. Your attorney can help you determine whether age discrimination occurred, assist you with filing a claim with the proper agency, and with filing a lawsuit, if it becomes necessary.
The emotional weight that comes with age discrimination at work is something that stays with you for a long time. These laws weren’t created on a whim though, they came about because our society recognizes just how much value experienced workers bring to the table in every workplace. Those years of knowledge you’ve accumulated and the perspective you have from watching entire industries evolve and change over the decades are all things that have tremendous value.
The most significant change happens when you go from a vague sense that something unfair is happening to actually understanding what your rights are and what exact steps you can take to protect them. When you understand what the ADEA covers and how it protects you, you will know that you need to document every strange comment or suspicious pattern and respect those critical filing deadlines (because missing them can sink your case). It can also mean you know when it’s time to bring in professional legal help. That’s the point when the entire situation changes in your favor. You’re no longer just sitting around worrying about what could happen and you become a person who knows what needs to be done if discrimination does happen.
Professional legal support can make a real difference. At LegalMatch, those experiencing workplace discrimination can connect with attorneys who understand every part of these laws. These lawyers know how to review your circumstances and talk you through each step of what can be a difficult legal process and advocate well for what you deserve. Having the right attorney through our platform means you won’t have to face this tough situation by yourself. You’ll have an advocate who can turn your documentation and your personal experiences into a strong legal case that actually delivers results.
It is fast and easy to use LegalMatch’s free lawyer matching services to find a discrimination lawyer in your area who can help you with any age discrimination issues you may be facing. It can be very difficult to prove age discrimination is happening without a lawyer’s help.
All you need is 15 minutes to complete the online submission form and be matched with licensed and prescreened discrimination attorneys in your area who are ready to assist you. These will contain information about each attorney’s fees, background, and client reviews.
