Age discrimination is adverse work treatment of an employee based on a class or category that the employee belongs to – employees over age 40 - rather than on the employee's individual merit.
People who are age 40 and older are protected from employment discrimination based on age by the Age Discrimination in Employment Act (ADEA) of 1967. The ADEA’s protections apply to both employees and job applicants. Age discrimination is prohibited in any term, condition, or privilege related to employment.
Age discrimination is unlawful in any phase of employment including job postings, job descriptions, interviews, hiring, salaries, job assignments, merit increases, performance management and evaluation, training, disciplinary actions, promotions, demotions, benefits, employment termination, and layoffs.
Any action that an employer takes that adversely affects a disproportionate number of employees over 40 is also age discrimination. In fact, according to the U.S. Equal Employment Opportunity Commission (EEOC), “the ADEA allows employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or younger.”
The ADEA also prohibits age discrimination among employees who are older than 40. As an example, a 60 year old employee may not be discriminated against in favor of a 50 year old employee.
The ADEA, and its age discrimination prohibitions, applies to all private employers who have 20 or more employees and to federal, state and local governments. Age discrimination is also prohibited by employment agencies and labor organizations.
More Facts About Age Discrimination
In the hiring process, requiring the age of applicants must only be for a “bona fide occupational qualification.” This means the employer must demonstrate that age is a reasonable question essential to the operation of the business.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to employees over 40. There are exceptions available in certain circumstances as long as the cost of insuring older employees is the same as insuring younger employees.
In situations involving early retirement offers, employment buyouts, and other exit incentive programs for older workers, work closely with the EEOC and an employment law attorney.According to the EEOC, “In Fiscal Year 2008, EEOC received 24,582 charges of age discrimination. EEOC resolved 21,415 age discrimination charges in FY 2008 and recovered $82.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
Have you ever experienced or witnessed discrimination in your workplace - however subtle? Please share your story.