The federal Age Discrimination in Employment Act prohibits employers from discriminating against workers aged 40 and older on the basis of their age. This means that employers may not make decisions about the employment of a person who is 40 or older because of the person’s age. 

Courts have interpreted the phrase “because of” to mean that an employee must show that age was the “reason” that the employer decided to act as it did. Or, in other words, “but for” the person’s age, the employer would not have made the decision that it made. 

The law broadly bans discrimination in employment decisions regarding workers over 40. Examples of age discrimination include:

  • Discrimination in hiring, or refusing to hire a person because of their age;
  • Discrimination in promotions; or not promoting a person because of their age; 
  • Discrimination in wages and salaries: paying employees differently based on their age;   
  • Discrimination in the termination of employment and in layoffs: firing or laying off a person because of their age;
  • Denying benefits to older employees: an employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing full benefits to younger workers;
  • Mandatory retirement in most sectors of the economy: Mandatory retirement has been banned since 1986 with phased in elimination of mandatory retirement for tenured workers, such as college professors, beginning in 1993.

Mandatory retirement based on age is still permitted for executives over the age of 65 or in a high  policy-making position.

Age discrimination is also illegal under the laws of many states. Victims of age discrimination may be entitled to remedies that can include money compensation for damages, and job restoration. 

To Whom Does the Age Discrimination in Employment Act (ADEA) Apply?

The Age Discrimination in Employment Act (ADEA) is a body of law that was adopted by the federal government in 1967. It applies to private employers with at least 20 employees. It also applies to state and local governments. A slightly different version of the law applies to federal government employees as well. 

It has prohibited mandatory retirement in most sectors of the economy since 1986; elimination of mandatory retirement for certain tenured workers, i.e. those guaranteed lifetime employment, has been phased in since 1993.

The ADEA protects workers who are over 40 years old. Some states have enacted their own laws against age discrimination that apply to workers under 40.

How is Age Discrimination Proven?

To prove age discrimination at work, a person must present evidence at trial that an employer made decisions regarding the person’s employment on the basis of the person’s age and that the person was 40 or older.

There are two ways to prove age discrimination. One is to prove “disparate treatment”. Disparate treatment means that a person was treated differently than other employees by an employer because of differences in their age. Disparate treatment is intentional discrimination. The other way is to prove that an employer’s actions had a disparate impact on its employees because of their age.

A person who wants to prove age discrimination in employment would have to present the testimony of witnesses, documents and possibly expert witness testimony to show the employer’s decisions, the reasons for them and their effect.

How are Claims Proven Under the Disparate Treatment Theory?

In order to succeed with a disparate treatment approach, a person must prove that they were 40 or older and qualified for their job. Furthermore, the person must show that they suffered an adverse employment decision and that people under 40 in the same workplace were not treated the same.

Adverse actions include actions such as demotion, firing or a change in the terms, conditions or privileges of employment. The victim of such actions would have to show that the adverse action arose under facts giving rise to an inference of age discrimination. Such facts may include the fact that the employee was terminated, and replaced by a much younger person.

Once a person proves these elements, the burden shifts to the defendant employer to prove that it had a legitimate reason for the action that was not based on age discrimination. If the employer meets that burden, then the plaintiff victim of the discrimination must show that the “legitimate reason” offered by the employer is actually a pretext and not the real reason.

Reasons that an employer can prove to justify their action include showing deficiency in the job performance of the employee, such as:

  • Poor job performance;
  • Tardiness;
  • Failure to comply with legitimate employer instructions;
  • Failure to meet specific job goals;
  • Commission of a serious violation of the workplace rules. 

How Are Claims Proven Under the Disparate Impact Theory?

The other way to prove age discrimination is to prove “disparate impact.” Disparate impact means that the employer applied a seemingly neutral policy, but it had a disproportionate impact on people 40 and older. Statistical evidence may be needed to support claims of disparate impact.

Once the plaintiff employee shows a disparate impact, then the employer must produce evidence to show that the negative impact was based on a reasonable factor other than age.

An employer may defend against the claim. For example, It may show that the challenged action was based on reasonable factors other than age. Such reasonable factors could include:

  • An employment practice that was related to safe, efficient job performance; or 
  • The employment practice was consistent with business necessity.

How Do I File an Age Discrimination Complaint?

A person who believes they are the victim of age discrimination must file a Charge of Discrimination with the federal Equal Employment Opportunity Commission (EEOC). This is a first step that must be done before filing a lawsuit against the employer in court. A Charge of Discrimination asks the EEOC to take action to remedy the situation. 

The EEOC provides an online tool that a person can use to determine whether they are eligible to file a Charge. If the online assessment tool confirms that a person is eligible to file a Charge, the person must then complete an intake questionnaire to begin the EEOC charge process.

Keep in mind that submitting the intake questionnaire is not the same as filing a Charge. The intake questionnaire only provides the EEOC with the information necessary to evaluate the case and determine whether there is a remedy for the person’s situation under federal law. The intake questionnaire can be downloaded from the EEOC’s website. The questionnaire includes information about the process of filing a Charge of Discrimination as well as instructions for filling out the questionnaire itself.

It is best to act promptly on a complaint of age discrimination. A person must file the Charge of Discrimination within 180 calendar days of the day the discrimination took place. The filing deadline is extended from 180 calendar days to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority that enforces the state law. The deadline is not extended if only a local law prohibits age discrimination, but there is not a state agency or authority that enforces the state law.

Federal employees and job applicants for federal employment must contact an agency EEO counselor within 45 days. Federal employees and applicants have a slightly different process for filing age discrimination complaints.

A person’s effort to resolve an age discrimination complaint through the employer’s internal procedure or through a union grievance procedure does not extend the deadline for filing an EEOC Charge. If a person wants to pursue action through these other channels, they must do so at the same time they pursue an EEOC Charge.

A person must then wait for the outcome of the EEOC investigation before filing a complaint against the offending employer in federal court.

Do I Need an Age Discrimination Attorney?

If you believe that you have been the victim of age discrimination in your workplace, you definitely want to consult an experienced age discrimination lawyer. The process of filing a Charge with the EEOC can become complicated. An experienced lawyer can help you complete the tool and questionnaire required by the EEOC. Or, the lawyer may be able to help you decide whether it is better to proceed under state law.

The kind of evidence that may be required to prove a discrimination claim could involve the analysis of a statistician. You are most likely to have a positive outcome if you have an experienced age discrimination lawyer at your side representing you.