Age discrimination at work: Know your rights and how to protect yourself

In the U.S., many critical civil rights statutes and employment laws are designed to protect workers from discrimination. You’re probably already aware of the restrictions on employment discrimination or harassment based on factors such as sex, gender, race, and ethnicity. However, the guidelines around age discrimination can be more confusing. Often, the lines get a bit blurred, and it can be hard to understand what qualifies as age discrimination and who can be a victim of it in the eyes of the law.

We’ve broken down the federal guidelines and some of the more confusing differentiations related to what does and does not qualify as age discrimination at work. Find out what situations qualify as age discrimination and explore some frequently asked questions (FAQs) about age discrimination laws.

What Qualifies as Age Discrimination under Federal Law?

The Equal Employment Opportunity Commission (EEOC) states that age discrimination involves treating an applicant or employee less favorably based on age. On a federal level, unfavorable employment treatment based on an individual’s age will typically only qualify as age discrimination in a legal sense if the person impacted is 40 or older.

That is because the Age Discrimination in Employment Act of 1967 (ADEA), the primary federal law on age discrimination, only forbids age discrimination against people aged 40 or older. It does not protect workers under the age of 40. The ADEA applies to private employers with 20 or more employees and federal and local government agencies.

The ADEA prohibits age discrimination in any aspect of employment, including hiring, firing, layoffs, job assignments, promotions, training, and compensation. Like other forms of discrimination, the primary concern is whether a particular factor (age) adversely influenced these decisions.

Passing up older job candidates or letting go of older employees for valid reasons not related to age is fine. Having a younger workforce within your company or team also doesn’t inherently imply that hiring managers are committing age discrimination. However, business leaders and HR staff should know how age-based biases impact employment decisions.

What Qualifies as Age Harassment?

Age harassment refers to unwelcome and offensive workplace conduct based on a person’s age. Typically, it relates to such conduct targeted toward employees who are 40 or over, as they are the group legally protected from age-based harassment.

Age harassment can come from various sources, including supervisors, co-workers, or even non-employees like clients or customers. It can manifest as age-based jokes, offensive comments, gestures, derogatory images, or other unwelcome verbal or physical conduct. Companies are increasingly discouraging the use of terms like “boomer” in the workplace, as they can carry negative connotations and contribute to age-related harassment. This demonstrates a growing awareness of the harm age-based stereotypes can cause.

Can Younger Employees Face Age Discrimination?

Of course, younger workers can also face unequal or adverse treatment due to their age, but does it legally qualify as age discrimination? The answer is that it depends on the jurisdiction. There is no federal protection against age discrimination for employees under 40. Still, some states have age discrimination laws covering workers of all ages. Check your state laws regarding age discrimination to verify whether your state protects all workers from discriminatory practices based on age or only those 40 or over.

Ageism against younger workers does occur. Each generation does things differently than the generations that came before them, which can cause some friction in the workplace. Gen Z and millennial workers tend to emphasize work-life balance and flexibility, which has led to some generalizations or misconceptions about their work ethic. This can lead to hiring discrimination or negative commentary in the workplace about specific age groups, “not wanting to work,” or lacking dedication.

Such statements or practices seem to meet the definition of age discrimination or age harassment. Still, they technically don’t qualify if they target workers under 40. A workplace should never tolerate discrimination or negative comments targeting any demographic group, even those without specific legal protections.

Creating a respectful and inclusive environment for all employees is always a best practice. Recognize that some Millennials are now in their early 40s. Using the term negatively blurs the line and risks accusations of age harassment or discrimination.

What If An Employee’s Age Does Interfere With Their Job?

In specific scenarios, age restrictions or mandatory retirement age policies are allowable and not considered unlawful age discrimination. Suppose an employee’s age represents a bona fide occupational qualification (BFOQ). In that case, such policies can be allowed if an older worker cannot safely perform the job by their age.

For example, the Federal Aviation Administration (FAA) dictates a mandatory retirement age of 65 for commercial pilots due to the severe safety concerns of operating a large commercial aircraft. Because aging causes a progressive deterioration of certain essential mental and physiological functions necessary for safely operating an aircraft, the age limitation is in place to protect the pilot and commercial aircraft passengers. Many first responder roles, including police officers and firefighters, are also subject to mandatory retirement ages (the exact age varies by region, employer, or union).

Most jobs aren’t as physically demanding or high stakes as a pilot or first responder. Even a slight deterioration in areas like cognitive ability, fine motor skills, or vision could have severe consequences. In most roles, any age-related health deteriorations can be accommodated just as you would accommodate any other employee with a disabling condition that impacts their work.

Can Older Employees Commit Age Discrimination or Harassment Against Others?

The perpetrator’s age does not change whether or not the conduct will qualify as age discrimination or harassment. Employees aged 40 and over may still commit age discrimination or age-based harassment against other employees aged 40 and over. For example, a 45-year-old manager could discriminate against a 60-year-old employee when choosing who to train and promote within their department.

Does Unequal Treatment Still Qualify as Age Discrimination If It Benefits The Older Employees?

The most common forms of age discrimination yield negative results, such as rejected job applications or being passed over for a promotion. However, age discrimination isn’t always done with hostile intentions or bad outcomes.

Sometimes, managers adjust older workers’ job assignments to make things easier for them. The EEOC advises that employers may not assign work based on employees’ ages, regardless of whether the employer believes the assignments will benefit the older workers. The agency gives the example of a retail store manager who assigned an older worker to work with only senior citizen shoppers. This may seem preferable for the employees and customers. Still, it is age discrimination, as the manager alters the employees’ job assignments and duties based on age.

The Americans with Disabilities Act (ADA) allows you to alter an older employee’s job duties when necessary for accommodation purposes. You can adjust an older worker’s tasks to accommodate disabilities, such as reducing typing for someone with arthritis. Crucially, these adjustments are made in response to a specific disability (and often at the employee’s request), not simply due to their age. This distinction is crucial in avoiding age discrimination claims.

Avoiding Age Discrimination Claims

The bottom line is that you should refrain from taking employment actions based on age. This is easier said than done, as unconscious biases can lead to age discrimination. Still, there are ways to avoid committing age discrimination and thus receiving discrimination claims.

Don’t Collect Unnecessary Information That May Indicate An Applicant’s Age

Try to limit the amount of personal information collected during the application process or to obscure unnecessary data when reviewing applications. Many organizations are adopting blind hiring to limit conscious and unconscious bias in the hiring process, but even just avoiding two standard pieces of information during application reviews may help you minimize the possibility of age discrimination in hiring.

Federal law does not prohibit employers from asking for an applicant’s age or date of birth on applications. Still, it’s best not to look at such information while reviewing applications. However, you can ask broader questions such as “Are you 21 years of age or older?” if needed for positions with a minimum age.

Similarly, it’s best not to ask for graduation years when asking applicants to enter their education information. Avoid collecting birth and graduation dates during the initial application process to minimize the risk of age-related bias. You can gather this information later during background checks to confirm employment eligibility and verify degrees.

Maintain Clear Practices and Documentation to Support Employment Decisions

There should be a clear reasoning behind your employment decisions. That reasoning should not involve the employee’s age (especially if they are over 40). Clear, consistent employment practices and thorough documentation make it easier to justify workplace decisions. This helps ensure that your actions are based on legitimate factors and not influenced by biases such as age or race.

One of the best ways to protect your business from claims related to age discrimination is to stay on top of employee reviews and performance documentation. Suppose you have a paper trail of each employee’s performance. Thorough documentation of employee performance provides justification for employment actions such as promotions, demotions, or terminations. This helps ensure decisions are based on legitimate factors and not influenced by discriminatory biases.

Know How to Handle Layoffs Legally

When facing layoffs, establish clear, legally compliant criteria for determining which positions to eliminate or which employees to let go. While seniority can be one factor in your decisions, you cannot base the layoff solely on an employee’s age. Thorough documentation of your decision-making process is crucial.

It may be tempting for employers to target those already close to retirement. When downsizing their workforce, their time with the company may be nearing an end anyway. Still, you can’t discriminate against older workers. However, there is a legal way to offer incentivized early retirement to older workers as an alternative to doing layoffs.

Early retirement packages often offer incentives, like a severance package, to ease an employee’s transition into retirement. In exchange, the employee typically signs a waiver acknowledging they will not pursue age discrimination claims. This is allowed under the ADEA as long as it’s handled properly. Still, you’ll want to work with an experienced employment lawyer or law firm.