An employer commits age discrimination when they treat an individual who is qualified for their job differently because of their age. Age discrimination in employment is illegal under federal law. 

Age discrimination is also illegal under many states’ laws.  Victims of age discrimination may be entitled to remedies. Remedies include (among others) compensation for damages, and job restoration. 

How does the Law Define Age Discrimination?

The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age.

The following activities may be considered prohibited discrimination:

  • Failing to hire, refusing to hire, or discharging any individual because of the individual’s age; and
  • Treating an individual differently, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age.
Terms, conditions, or privileges of employment include subject matter such as salary, benefits, and opportunities for promotion or other advancement. 

To Whom Does the ADEA Apply?

The ADEA applies to private employers who:

  • Have 20 or more employees; and
  • Engage in interstate commerce.

The ADEA also applies to public employers (state and state political subdivisions).

How is Age Discrimination Proven?

Age discrimination under the ADEA can be proven under two theories. One of these theories is called the disparate treatment theory. The other theory is called the disparate impact theory. These two theories may be applied in various legal claims, depending on the circumstances.

How are Claims Proven Under the Disparate Treatment Theory?

Under the disparate treatment theory, an employee must prove intentional discrimination on the basis of age. An employee makes a prima facie case (an initial showing of age discrimination) by demonstrating the following:

  • The employee, at the time of the act alleged to be discriminatory, is 40 or older;
  • The employee is qualified for their job position;
  • The employee experiences an adverse employment action;
    • Adverse actions include actions such as demotions, firings, or changes to the terms, conditions or privileges of employment); and
  • The adverse action arose under facts giving rise to an inference of discrimination.
    • Such facts may include the fact that the employee was terminated, and replaced by a substantially younger person.

To win a claim of disparate treatment discrimination, the employee must demonstrate that age was the “but-for” (legal) reason for the discrimination. That is, the employee must show that, had it not been for the employee’s age, the adverse action would not have been taken. 

Once the prima facie case has been established, the employer must state a legitimate, non-discriminatory reason for the act alleged to be discriminatory. Here, the employer must simply produce enough evidence that the reason was non-discriminatory, to require that a jury decide the issue. 

If the employer does so, the employee, to prevail, must show that the employer’s reason is false, and that discrimination is the “real reason.” If the employee shows that the employer’s stated reason was a “pretext” for discrimination (a “pretext” is a reason given in justification of a course of action that is not the real reason), the employee prevails.

Employers have several defenses to a claim of employment discrimination. A common defense is that the challenged action was taken for a legitimate, non-discriminatory reason. Such reasons may include poor job performance and tardiness. Reasons may also include failure to comply with legitimate employer instructions. Other reasons include an employee’s failing to meet specific job goals, or an employee’s having committed a serious rule infraction. 

How are Claims Proven Under the Disparate Impact Theory?

The disparate impact theory of discrimination does not require that intentional discrimination be proven. Rather, an employee establishes disparate impact age discrimination by demonstrating that the employer has awork practice that has a disproportionately negative impact on older workers.

To prevail on a disparate impact theory claim of discrimination, a plaintiff must:

  • Identify a specific employment practice that as a disparate impact on workers aged 40 or older. Such a practice must be neutral on its face. The practice must have the potential to harm might harm older workers more than younger workers. The practice must also apply to groups of employees.
    • Example of specific employment practices include employee screening tests, and procedures used to identify persons to be laid off in a “reduction in force” (A “RIF,” or large layoff). 

An employer may defend against the claim. It may do so by showing that the challenged action is based on reasonable factors other than age. Such reasonable factors include:

  • The employment practice is related to safe, efficient job performance; and
  • The employment practice is consistent with business necessity.

Do I Need an Age Discrimination Attorney?

Employment discrimination claims are complex. If you believe you have been subjected to age discrimination, you may need to contact an experienced employment lawyer.

An employment law attorney can review the facts and circumstances of your situation. The lawyer can also determine the appropriate claim filing deadlines. The lawyer can further protect your rights by representing you at hearings or trial.