Age Discrimination

Age discrimination involves differential treatment or harassment of an employee on the basis of their age.

Age discrimination can occur either because an employee is a certain age or because an employee is seen as being a certain age. Age discrimination can occur if an employee is seen as having certain traits because of their age or even not acting in a way that is expected of people of a certain age.

While many people think of age discrimination as happening against an older worker, and there are some laws that specifically protect workers age 40 and over, age discrimination can happen against people of any age by people of any age, including within a similar age.  Policies that favor any age group may be discriminatory.

While workplace discrimination usually occurs between an employer and employee, employees with levels of seniority (superior and subordinate), or co-workers, in some instances an employee can experience age discrimination by a client or vendor, particularly if an employer knows about the discrimination and has not taken action to prevent it from recurring.

There are many forms of age discrimination. It can be different, less favorable treatment at any stage in the employment process, including help-wanted ads, interviews, pre-employment testing, hiring, job assignments, shift assignments, promotions, compensation, benefits, job training, layoffs or termination.

This kind of discrimination may be very direct, such as when an employee is not hired or is fired because of age or age-related characteristics/stereotypes. It can also be more subtle, such as an employer’s policy that inherently discriminates against people of a certain age without a real business need. For example, if the employer restricts benefits or insurance by age or promotes a culture geared toward a certain age group, older employees may be affected by these policies. For an employer to legally maintain such policies or workplaces, they must be clearly related to the legitimate demands of that particular job.

Age discrimination may come from supervisors, co-workers or in limited circumstances from other individuals, such as vendors or clients. If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, these practices are also against the law.

Discrimination can also be harassment experienced by an employee because of their age, age-related traits, or even not showing the traits expected of their age. Harassment can include “jokes” or comments about people of a certain age, derogatory comments about an employee’s age, hostile comments or actions toward the employee based on his age, the display of drawings or pictures that negatively portray people of a particular age, or any other action that creates an intimidating, hostile, or offensive work environment, or interferes with the employee’s work performance. To be considered discrimination, harassing actions must be “severe and pervasive.” In other words, an isolated incident or “offhand teasing” would probably not be enough for a lawsuit.

It is illegal for an employer to take any adverse or punitive actions against an employee for complaining about age discrimination or other employment law violations. “Adverse actions” include termination, demotion, discipline, reduction of pay, or any other actions that would cause the average person to avoid making such a complaint. Adverse actions may occur outside the context of work and include threats, including threats of deportation or reporting a person to government authorities.

It is important to note that the discrimination does not have to be proven for the complaining employee to be protected against retaliation. In other words, if an employee makes a complaint about age discrimination and is fired a few days later, the employer may be liable for retaliation even if no court or government agency finds that the underlying age discrimination actually occurred.