Age Discrimination: Legal Issues Surrounding Ageism in America

Have you ever formed an opinion of someone based solely on their age? We do this a lot unconsciously. Compared to race, sex, and gender discrimination, ageism is more widespread yet goes unchallenged

Ageism is a stereotype against someone’s age, such as thinking that they are no longer fit for employment just because they have crossed a certain age threshold. It is even institutionalized in employment policies, such as imposing a mandatory retirement age.

The reasons are plentiful, bolstered by the media’s obsession with youth, which makes older people feel invisible and unwanted. Moreover, the higher costs of health care associated with older workers are often used to justify an employer’s decision to cut costs by hiring younger employees.

This article discusses the main employment and legal issues surrounding ageism in the workplace and what we can do to combat this form of discrimination.

Growing old, while an evitable process, need not be viewed as a curse. In fact, our older population is set to double in size in the next few decades.

The time is now ripe to improve older adults’ rights and quality of life.

Overview of Ageism in America

As America ages rapidly—with the number of older adults set to double by 2040—understanding ageism becomes crucial. By 2039, one in five Americans will be over the age of 65, highlighting the growing importance of inclusive policies.

According to the 2018 report by the American Association for Retired Persons (AARP), about three in five older workers (61%) have either seen or experienced age discrimination in their workplace. According to the EEOC, around 70% of workers face workplace discrimination, but it is estimated that only 3% file a formal EEOC complaint.

Employment agencies sometimes show a preference for younger workers when assisting individuals seeking employment. Despite laws that prohibit discrimination, this form of employment discrimination continues to affect older job seekers.

The Stigma of Ageism

When did it start – that old age, such an inevitable life phase for everyone, is also the most stigmatized? Older workers with decades of experience and low turnover are a valuable resource for organizations. In the hiring process, age discrimination in employment often manifests through various biases. Employment agencies can contribute to these adverse employment decisions, further perpetuating ageism. Researchers have proved the validity of the so-called happiness curve – a U-shaped trend in which happiness sinks to a low during middle age before peaking again in old age.

Positive age beliefs, rather than the actual aging process, determine whether we enjoy the benefits of old age. The problems of later life have been so overestimated, and its resilience underestimated, that the stigma of getting old remains.

Legal Framework Against Ageism

The Age Discrimination in Employment Act (ADEA)

The Age Discrimination Employment Act (ADEA) is a federal law that provides the main legal framework against ageism. The ADEA prohibits discrimination based on age for those aged 40 and over, and outlaws mandatory retirement for nearly all workers. Federal law prohibits discrimination and protects against adverse employment decisions based on age, ensuring that older employees are not unfairly targeted by employers, supervisors, or co-workers.

Specifically, the ADEA prohibits age discrimination in all aspects of employment, from hiring to termination. It also prohibits harassment that is so severe that it creates a hostile work environment with adverse consequences, such as health-related issues or detrimental employment decisions.

Age discrimination in employment often involves adverse employment decisions that unfairly target and impact older workers. The law prohibits discrimination not only by employers but also by co-workers, ensuring broader protection in the workplace.

A person’s age can lead to an offensive work environment, especially if job assignments are unfairly influenced by age-based biases. When a victim’s supervisor perpetuates this discrimination, filing a formal complaint under federal employment law is often a crucial first step.

You have a workplace age discrimination case when:

• You are in the protected age class (over 40)
• Your job performance is satisfactory
• The employer has taken adverse actions against you
• A similarly qualified but younger employee is being treated more favorably than you

Likewise, you can also make a hostile work environment claim, providing you can produce sufficient evidence to show:

• You are subjected to age-related – discriminatory – conduct, such as verbal or physical abuse at work.
• The severity and frequency of these conduct, whether they are threatening or humiliating.
• You do not welcome such conduct.
• The conduct was severe and pervasive enough to interfere with your work and alter your working conditions (rendering a workplace abusive).

To initiate an age discrimination claim, you can:

• Issue a verbal, or better yet, a written complaint with a timestamp – a more concrete form of evidence
• Gather testimonies from colleagues
• File a charge with the EEOC
• After 180 days, request a “Notice of Right to Sue” letter from the EEOC
• File a federal lawsuit

If you win your age discrimination case, you can potentially recover all of the following:

• Back pay and lost benefits plus interest
• Liquidated damages
• Equitable relief
• Lawyer’s fees and costs

According to a study by the National Bureau of Economic Research (NBER), the ADEA has increased the employment rate of workers over 60 substantially. When more older workers can work and support themselves, the burden on public expenditures to provide health insurance, retirement benefits, and income support is relieved.

Limitations of the ADEA in protecting against ageism

While being the cornerstone of legal protection against age discrimination, the ADEA has several limitations that you need to consider before choosing it as the main legal recourse.

This only applies to companies with 20 employees or more

As a federal law, the ADEA only applies to employers with a staff of more than 20 people. Such company size would likely exclude large swathes of small businesses such as restaurants, stores, local services, and young startups. While state law may offer additional protections, federal law does not prohibit simple teasing or isolated incidents unless they are severe. Discrimination against older workers often requires a pattern of behavior to be legally enforcable.

If your case concerns a smaller company, you may find more protection in state laws (consult this database of all state laws on employment discrimination). In general, you may expect stronger protection from state laws: they include smaller employers, give employees more protection, and provide a greater choice of remedies.

The initial burden of proof is on the plaintiff

Proving ageism is hard (although the bar may be lower for federal workers compared to those in the private sector). This is arguably the biggest limitation of the ADEA. Oftentimes, affected employees are unaware of the discrimination.

When the issue becomes clearer, the plaintiff must gather sufficient evidence to prove a factual cause for the employer’s action. Another way of showing the element of causation is to establish proof that the employees’ age was the primary factor in the employment decision (see Gross v. FBL Financial Services Inc.).

Once you gather enough evidence to make a case, the burden then shifts to the employer, who must provide a legitimate, nondiscriminatory reason for their decision. For example, they may claim that the employment decision was due to employee misconduct.

Once they do, the burden shifts back to the employee, who must establish that such a decision was a pretext and that intentional age discrimination was the employer’s real motive.

The challenge in enforcing the ADEA

How to prove ageism at the hiring stage of employment? The NBER study mentioned above also reveals that job-ad language containing age-based stereotypes, even when not blatantly or specific, discourages older applicants.

There is no provision to encourage employers to hire older workers because the salaries and benefits would likely be more costly. The employer must do extra work to arrange healthcare for older workers, even when it is part of their responsibilities.

To know more about benefits for older employees, see the Older Workers Benefit Protection Act of 1990 (OWBPA), an amendment to the ADEA.

Notably, the ADEA does not explicitly prohibit employers from asking for an applicant’s age or date of birth, even when doing so may deter older workers from applying. Such disincentives against older job seekers are not covered under the ADEA.

Controversy over compulsory retirement ages

There is no federal law regarding mandatory retirement ages; each state has its laws and regulations on this matter. In many states, employers can set their retirement age so long as it is clearly stated in their policies and consistently applied. If they cannot provide clear and concise reasons, it can still be considered discriminatory.

Even more, it is legal for employers to force employees to retire at different ages based on their health and performance. If you are deemed to be unfit to do all that your job requires, your compulsory retirement may not be seen as discriminatory.

It may help the employer’s defense because it shows that forced retirement is based on performance, not age. This also relates to the BFOQ defense (see below). Essentially, if some jobs are too physically demanding for older employees to ensure safety and productivity, then mandatory retirement age is legal.

Imposing mandatory retirement age may not be a bad thing. A company needs to allow time for effective succession planning, providing room for new talent to grow and allowing companies to keep up with the current marketplace.

One may argue that the key to making compulsory retirement a smooth transition rather than a humiliating experience lies in how it is handled and not whether it is firmly legal. If someone’s career is ended amid feelings of rejection and inferiority, it can feel stigmatizing and may lead to poorer health in retirement.

Instead, the company should have a retirement program in place that honors the admirable contributions of the soon-to-be-retired, acknowledges their legacy, and arranges due benefits. In this case, passing laws is less impactful than changing people’s bias against old age.

ASEA does not prohibit all types of ageism

The ADEA only protects people over 40, not those under 40. Should this be judged as an oversight? As mentioned above, U.S. society favors youth, so one may argue that those under 40 do not suffer ageism as much as the other group.

The ADEA does permit an employer to favor older workers at the expense of workers under 40, with the rationale that the older workers may teach younger colleagues with their experience.

On the other hand, those under 40 arguably have gone through more economic turbulence than the older generations. They have weathered through global economic crises and rapid technological changes that left a much larger impact on their employment prospect. We remain divided on this issue.

Allows employers to favor someone older than you  – both in the protected age class

Another debate arises from the alleged discrimination among subgroups of the protected age class. If a company favors workers over 50 against those over 40, would this be seen as age discrimination?

According to the U.S. Equal Employment Opportunity Commission (EEOC Fact Sheet), the ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

For instance, if a 50-year-old employee is chosen for a promotion over a 42-year-old employee simply because of their age, then this is not considered a valid case of age discrimination under the ADEA.

In other words, when you are 40 years or older, the ADEA no longer protects you when the favored person is older than you. However, as Cilenti & Cooper explains, if there is a large age gap between you, such as 41 and 65, then age discrimination may still apply to your case.

However, if your age gap is merely a few years, such as 39 and 41, it may not amount to age discrimination.

Exceptions in ageism protection

Not all employers are liable for ageism. Check if your company is doing enough to protect the staff from age discrimination, according to Sheila Callaham on the Eli Lilly case (see below):

• Tracking age demographics to ensure fair practices

• Regularly reviewing HR policies to reveal gaps in age protection

• Providing targeted training on age bias, stereotyping, and discrimination

More exceptions seem to be discriminatory but do not constitute ageism:

• BFOQ defense (see below)

• Discrimination waivers

• BFOQ defense against age discrimination

Would you be too old to fulfill the job requirements?

The “bona fide occupational qualification” – BFOQ defense – revolves around this idea. Your age may be an essential part of normal business operations, commonly for safety reasons. For instance, these occupations may have acceptable BFOQ:

• Public mass transit drivers and pilots over 60.

• Actors and models of a particular physical appearance for authenticity.

To prove a BFOQ, the employer must show some evidence proving that the age limit they are imposing is reasonably necessary to the essence of the business.

Customer preferences such as male mechanics or female flight attendants are generally not an acceptable BFOQ. Also unacceptable is the reason that an older worker may move more slowly or need things explained more than once. This does not disqualify them from the job.

Discrimination waivers of all future age discrimination claims

This is less of an exception and more of an exit incentive that waives the employers of any discrimination claims in the future in exchange for a monetary bonus. An ADEA waiver of claims is often issued to employees during the termination process. The employee has at least 21 to 45 days to sign the waiver. To know more, see the EEOC’s guidance.

Essentially, the waiver:

• Must be written in clear and unambiguous language.

• Must specifically refer to the rights under the ADEA, expressly spelling the act out by name.

• Must advise the employee to consult a lawyer before accepting the waiver.

• Must provide 21 days for the employee to consider and the 21 days must be renewed if any changes are made to the material.

• Must give the employee 7 days to revoke their signature, and this period cannot be changed or waived by either party.

If these requirements are not met, the former employee may still sue the company after collecting the payment.

Other Relevant Laws and Regulations Against Ageism

The workplace is not the only place that puts up barriers when you grow old. Age discrimination also happens where you live. In this space, older people are protected by three legislations:

• The Fair Housing Act (FHA)

• Older Americans Act (OAA)

• The Americans with Disabilities Act(ADA)

The Fair Housing Act

While age is not a protected class under the Fair Housing Act, the act protects you from discrimination based on sex, gender, national origin, or religion. If you have excellent credit history and references, a landlord cannot legally refuse to rent to you, even if you may have to rely on others’ help to some degree. The community in question cannot require you to be ‘capable of independent living,’ and you have the right to hire live-in care.

The Fair Housing Acts also designate the types of housing for senior adults. Called senior housing or retirement communities, these dwellings are specifically designed to assist elderly people between 55 and 62. At least 80% of the units must be occupied by at least one resident above such an age threshold. These communities can legally exclude families with children.

They ensure equal access to housing that is affordable, age-friendly, and accessible. In addition, you can also access the services you need in your community, and not in an institutional setting.

The Older Americans Act

This is the first federal law that provides comprehensive services for older adults and their caregivers through social service programs. They operate a national network of state and area agencies, service providers, and organizations. Specifically, Title III of the act is intended to target adults over 60 who are lower income, minorities, living in rural areas, speak little English, or are at risk of institutional care.

The on-the-ground organizations are the local area agencies (AAAs) that have the responsibility to help older adults live with independence and dignity. They are also allowed the flexibility to adapt to local needs. Check with your local AAA for a range of services:

• Information and referral

• Meals

• Health and wellness

• In-home care

• Transportation

• Elder abuse prevention

• Legal assistance

• Caregiver support

• Adult daycare

Essentially, this is an important law to enable older Americans to age in place and fully take part in community life.

Recent and Noteworthy Ageism Cases

As companies seek to make their workforce younger, several corporate giants have faced age discrimination claims. Most recently, Eli Lilly, a pharmaceutical corporation has settled a nationwide class lawsuit.

The successful plaintiffs were pharmaceutical sales representative applicants who were denied positions due to Lilly’s ‘Early Career’ hiring program. Similarly, IBM’s “Early Professionals” hiring initiative also led to lawsuits from over 100 IBM ex-employees who had lost their jobs due to age discrimination. The case was likely settled confidentially out of court.

The Future of Ageism and Anti-Ageism Legislation

The “but for” cause in the ADEA has been seen as a shortcoming, imposing a higher bar and making ageism cases harder to win than other discrimination cases. Fortunately, this may change shortly. In December 2023, a bill – Protecting Older Workers Against Discrimination Act (POWADA) – was reintroduced that would make it easier for older workers to win age discrimination lawsuits.

Citing The Global Report on Ageism, The Lancet reports three strategies to reduce ageism:

• Policy and law: addressing discrimination and inequality based on age

• Educational interventions: correct misconceptions and counter stereotypes

• Intergenerational contact: combat ageism among younger people

For a more comprehensive take on improvement to the current legal framework, consider David Neumark’s proposals to strengthen age discrimination protections.

What You Can Do to Fight Ageism

Advocate for Stronger Protections Against Age Discrimination

Age discrimination is a serious issue that affects many individuals, particularly those in the older adult population. It is important for everyone, regardless of their age, to advocate for stronger protections against this form of discrimination.

Here are some ways individuals can contribute to this cause:

• Educate Yourself and Others: Understanding the laws and regulations around age discrimination is the first step. Use reliable sources to educate yourself, starting with the EEOC’s Age Discrimination section.

• Support Legislation that Protects Against Age Discrimination: Keep an eye on local, state, and federal legislation that aims to strengthen protections against age discrimination. Write to your elected representatives expressing your support for such legislation and encourage others to do the same.

• Raise Awareness: Use social media, blogs, and other platforms to raise awareness about age discrimination. Share personal stories, data, and information about the effects of age discrimination and how to combat it.

• Support Organizations that Fight Age Discrimination: Many organizations, such as the American Association of Retired Persons (AARP), the National Council on Aging, or your local Area Agency on Aging (AAA) work to fight age discrimination. You can support these organizations by donating, volunteering, or spreading the word about their work.

• Promote Age Diversity in the Workplace: If you’re able to do so, advocate for hiring and promotion policies that value age diversity. This can include implementing unconscious bias training, creating mentorship programs that pair younger and older workers, and establishing a zero-tolerance policy for age-based harassment.

• Report Age Discrimination: If you or someone you know is a victim of age discrimination, it’s important to report it to the proper authorities. This could be a supervisor, a human resources (HR) department, or a federal agency like the EEOC. Reporting incidents helps to hold wrongdoers accountable and can lead to policy changes.

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