Many younger employees and younger supervisors often undervalue their older co-workers due to a combination of misconceptions, stereotypes, and generational differences. Age discrimination in the workplace is more widespread than people believe. There are many examples of age discrimination throughout society, and it is particularly common in certain workspaces that employ younger workforces such as the tech industry.
As employment discrimination lawyers, we have seen many different examples of age discrimination and age harassment at work. While discrimination based on age is illegal, many do not fully understand the nature of age discrimination. This article seeks to clarify many of those misconceptions and explain age discrimination law.
Under federal law, the Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older.
The law prohibits an employer from taking an employee’s or job applicant’s age into account when making decisions affecting the terms and conditions of one’s employment. In other words, the law prohibits discrimination in any aspect of employment, including:
The law is quite broad and also prohibits the harassment of older employees because they are older. Older employees also cannot be denied the same privileges and perks that younger employees enjoy such as employer-provided health care. Finally, it is illegal to fire an older employee in order to avoid paying out a promised pension.
Unfortunately, federal law does not protect employees under the age of forty from being discriminated against due to age. This is mainly because older employees are discriminated against much more frequently in the workplace than younger employees. However, many state laws provide protections for employees under the age of forty from being discriminated against due to age.
The enforcement of federal age discrimination laws begins with the filing of a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency responsible for directly enforcing federal employment discrimination laws. A charge of discrimination is a signed statement asserting that an employer, union or labor organization engaged in employment discrimination. It requests EEOC to take remedial action.
The EEOC will thereafter conduct an investigation into the allegations, including getting the employer’s side of the story. 60 days after the Charge of Discrimination was filed with the EEOC, the employee has the right to file an age discrimination lawsuit in federal court, at which point the EEOC will close its investigation.
Lastly, the EEOC may also pursue litigation on its own on behalf of the employee against the employer. However, simply because the EEOC chooses not to take on a case does not mean the case lacks merit. The EEOC is a large and busy organization and cannot pursue every case with merit. Filing a civil lawsuit based on federal law can become incredibly complicated, and it is advisable for all employment law litigants to hire an attorney who specializes in employment discrimination related cases.
Age discrimination is often difficult to prove. However, there are many telltale signs of age discrimination that can alert employees to the possible existence of an employer’s discriminatory intent. First, while the work environment may not actually be “hostile” to older workers, employers and supervisors who harbor implicit biases against older employees tend to play favorites with younger employees.
Where supervisors treat older employees differently in handing down disciple, assigning favorable shift schedules, or promoting younger employees first, illegal age discrimination may be occurring. Employees should also watch for comments with ageist undertones such as “old timer,” “old fogey,” or “grandpa/grandma.”
Keep in mind that this advice is not aimed solely at older individuals who might be at risk for discrimination. As previously explained, age discrimination is not a particularly visible form of discrimination and does not garner the same amount of media attention as gender and race discrimination.
This places the onus on all employees, old and young, to remain vigilant and report any age discrimination that they witness. Employers and supervisors who are guilty of age discrimination will routinely deny that discrimination is occurring, but those who pay attention will begin to notice some of the signs of age discrimination.
If you suspect that age discrimination is occurring in the workplace, you should begin to collect evidence of that discrimination. Very few employers will admit to age discrimination because it is illegal. Therefore, to prove an age discrimination case, affected employees will need to find other ways to prove their case.
Employees who suspect discrimination should begin by keeping a diary of discriminatory events. Write down the date and time of any incident such as jokes made in poor taste, comments about the older employee’s age, and negative employee evaluations that reference age. It is also important to record the names of people who were involved in the incident and the names of any witnesses. If comments were made in an email, print the email and preserve it along with other diary entries.
Next, you should report the discrimination to the person/department designated to receive complaints of discrimination, pursuant to the employer’s policy. If your company does not have a complaint procedure, you should speak with an appropriate supervisor and/or human resources who could help you remedy the situation. When meeting with human resources, you should present your evidence and discuss the effect the discrimination has had on you.
Do not be aggressive and threaten legal action because that may discourage a simple resolution.In the event you are still unable to resolve the issue, you should consider contacting either the EEOC or an attorney. Representing yourself in a legal forum is generally not advisable, particularly where the issue is one of federal law. Statistically, hiring an attorney makes it more likely that your case will result in a favorable outcome.
The Law Office of Yuriy Moshes is a New York and New Jersey based law firm that practices employment law and helps clients to resolve cases of employment discrimination, including age discrimination. We offer a multitude of services such as guiding you through the EEOC process and bringing your case to court if necessary. Our law firm can also assist you in the review of a retirement severance package. We provide free consultations for all victims of age discrimination.