Labor and Employment

Age Discrimination in the Workplace

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

The federal government protects workers against unfair discrimination. The Age Discrimination in Employment Act (ADEA) applies to companies who force older employees into retirement, deny them jobs, or subject them to ridicule if they're 40 or older. Even if you're not yet a senior citizen, the ADEA covers you. Some state laws even protect workers before they reach age 40.

Usually, Employers Can't Advertise for Younger Workers

When employers are looking to fill a position, the ADEA prevents them from mentioning age requirements in their advertisements or employment postings. An exception exists if an applicant's age will directly affect the business.

For example, some older people might not be able to perform a physically difficult job. When this is the case, employers are usually allowed to state this in their job postings and request younger workers. They would have a defense if you tried to bring an ADEA claim against them.

Employers Can Ask Your Age

When you interview with a prospective employer, the employer can ask your age. This isn't against the law. However, the employer can't use the information against you in an employment decision.

Harassment Is Discrimination Too

Age discrimination goes beyond an employer's hiring practices. Employers can't allow workplace harassment to be directed at you because of your age.

Harassment generally involves persistent and frequent teasing or ridicule from co-workers, or verbal abuse from your employer, such as by suggesting that your work is always unsatisfactory because probably you have Alzheimer's disease. Occasional comments of this nature, however, usually not constitute discrimination.

Compensated Retirement Is Different

If your boss asks you to retire, but offers you a nice retirement package and puts it in writing, you may not be able to file an age discrimination claim. The ADEA has specific rules for such agreements. Your employer must give you 21 days to decide if you want to take the deal, and another seven days to change your mind after signing the agreement. It must address ADEA guidelines.

Age Discrimination Doesn't Work in Reverse

Federal law doesn't protect younger workers from age discrimination. Employees under the age of 40 can't file an age discrimination claim against a company if they lose a job opportunity or promotion in favor of an older worker.

Proving an Age Discrimination Claim

Age discrimination claims can be very difficult to prove. You'll probably need a lawyer's help. Your employer can argue that you've become incapable of doing your job, and that's why you were let go. Depending on your line of work and your age, this can be a reasonable defense. In addition, the ADEA doesn't apply to companies with fewer than 20 employees.

An Employment Lawyer Can Help

The law surrounding age discrimination in the workplace is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact an employment lawyer.

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