In 1967, the Age Discrimination in Employment Act (ADEA) was passed to protect people from harassment and discrimination in the workplace. From there on, age has been one of the characteristics protected in the workplace, meaning employers could not discriminate against their employees based on their age.
The intent of this legal action is clear, but things are very different in reality. Despite the legal efforts to put a stop to this type of bias, age discrimination and harassment still happens in every industry and companies of all sizes.
According to an analysis by the Urban Institute and ProPublica, more than half of older US employees are forced out of their longtime jobs before they opt to retire, causing them to suffer substantial financial damage that is often irreversible. The analysis also shows that from 1992 to 2016, 56% of older employees have been either fired at least once or left their jobs under such financially devastating circumstances that it’s likely they were forced out of their positions than left voluntarily.
Some employers offer incentive retirement packages, but others use likely illegal methods to try to push their older employees to leave, such as job reassignments, writing unfair negative performance reviews, not providing workplace accommodations, and more. The goal is for older employees to give up on their roles which would look voluntary on paper. Needless to say, such methods lead to dire financial consequences, which the analysis shows as only one in ten employees analyzed managed to earn as much as they did before their employment setbacks.
In this article, we will discuss age discrimination, its specifics, and how you can recognize it in the workplace.
What Is Age Discrimination in the Workplace?
Ageism, also known as age discrimination, is creating stereotypes and biases based on an employee’s age. It happens when a candidate or employee is treated differently because of their age. Ageism can take place in various aspects of employment, from hiring, compensation, job assignments, promotions, and firing to any other condition of employment.
The common perception of ageism is bias against older employees, but age discrimination extends to younger generations, too. According to a 2019 Glassdoor survey, younger employees ages 18-34 were more likely to experience age discrimination at work than older employees ages 55+.
Another survey by AARP found that two out of three workers age 45 and older said they had witnessed or experienced age discrimination at work. The survey also shows significant differences between the genders when it comes to ageism, as 72% of women think people face age discrimination at work while only 57% of men feel the same.
The very idea of what is considered old among employees is troubling, especially when it comes to Silicon Valley and other tech-centered locations where ageism is magnified. In the tech industry, most employees are in their late twenties, and people over 35 years of age often have difficulties landing a job due to their ‘old’ age.
The Specifics of Age Discrimination
The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees who are 40 years or older and applies to:
- Companies with 20 or more employees
- Federal, local, and state government
- Employment agencies
- Labor organizations with at least 25 members
Military personnel and independent contractors are not protected under the ADEA. Although the law doesn’t protect people under the age of 40, some states have their own laws to protect younger employees from discrimination. Age-based harassment is illegal and unlawful in every aspect of employment, including:
- Job postings and job descriptions
- Job Assignments
- Merit increases
- Disciplinary Actions
- Performance management and evaluation
- Employment termination
The ADEA was followed by the Older Workers Benefit Protection Act of 1990 (OWBPA), which specifically prohibits employers from denying benefits to older employees. However, the ADEA was weakened in 2009 following a Supreme Court decision in which the ruling imposed a higher burden of proof on workers claiming age discrimination than those who claim discrimination based on gender, race, or religion. However, the ADEA does not cover younger workers. It is not against the law for an employer to favor an older worker over a younger one, even if they are both age 40 or older.
How to Recognize Age Discrimination at Work?
If you think you or someone you know is experiencing age discrimination at work, you might be right. Here are a few signs of ageism to look out for in the workplace:
1. Hearing or Being Subjected to Age-Related Comments or Insults
If you hear your employer or a manager making age-related remarks or speaking to you in a degrading and demanding tone, they may be crossing the line of harassment. Even the most professional older employee may experience microaggressions, which are daily verbal or behavioral insults, intentional or unintentional, targeted at a specific person or a group.
2. Noticing a Pattern of Hiring Only Younger Workers
Many employers will deny it, but they may specifically target younger workers. This is often due to unfounded assumptions about knowledge, ability, sociability, and work pace.
3. Being Turned Down For a Promotion
If you’ve experienced being turned down for a promotion that ended up going to a younger, less skilled employee, you may have evidence of unlawful age discrimination.
4. Being Overlooked for Important Work Assignments
One way your employer might discriminate against you is to stop giving you challenging and important work projects. This common tactic frustrates and demoralizes older employees while making them seem useless and less valuable to a company.
5. Being Isolated or Left Out
Your employer might start removing you from meetings, leaving you out of important decisions, and isolating you from the rest of the department or a group, making it more difficult for you to contribute as a valuable part of the team.
6. Being Encouraged or Forced to Retire
Your employer may offer an early retirement package as an incentive to push you out. These offers are often hard to turn down, and even if you do, there is no saying that your employer won’t fire you anyway. Some companies may even enact a mandatory retirement age, although that is only legal for a limited number of professions, such as firefighting or law enforcement.
If your company is laying off only older employees, you may be able to prove age discrimination. Since layoffs require legalities, some companies might try to dilute layoff groups by including a number of younger workers in the mix as well.
8. Your Position is Eliminated
Your employer might try to eliminate your role by changing the job title. If your employer says that your position is being terminated and then hires a younger worker in the same capacity as you, only with a different title, you might have evidence of ageism.
9. You Are Facing Unfair Discipline
If you seem to get harsher criticism or discipline than your colleagues for similar mistakes or issues, this can be a subtle but sure sign of unlawful age discrimination.
10. You Are Being Put on a Performance Review Plan
If you have had positive reviews in the past and have no history of poor performance, suddenly being put on a performance review plan (a corrective plan typically reserved for employees with a history of negative reviews or bad performance) might be a good sign that you’re being discriminated against.
Even though ageism is illegal, it still exists in today’s workplace, partly because age stereotypes and generation gaps are so prevalent and widely accepted. To combat ageism, organizations must commit to fair hiring, develop policies that protect employees from all forms of discrimination, and allow employees of all ages to work and progress in their careers.
To find out whether you have a case worth pursuing, feel free to contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.