Age Discrimination: What It Is and How to Avoid It

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 14, 2021

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There are many anti-discrimination laws in the United States, many of which are familiar to Americans – racial discrimination, sex discrimination, and discrimination of the disabled, to name a few. What some people may not know is that employment discrimination based on age is also illegal.

When in a recession, older and more experienced workers are often the ones hit the hardest. Sure, the newest employees may be the first to go, but when the big cuts come, those who have been there the longest become prime targets. Why? These individuals have climbed the ladder and make higher salaries. As the reasoning goes, a younger, less experienced employee costs less money and is a better investment than a more expensive, older employee.

As evidence of the negative impact of the recession on older employees, the U.S. Equal Employment Opportunity Commission has seen an almost 70% increase in claims under the Age Discrimination in Employment Act since 1997. In addition, the AARP claims that the unemployment rate of Americans over 55 years of age increased by over 300% in that same time period.

The History of Age Discrimination

While age discrimination may be a new concept for some, laws related to it have been around for decades. The Age Discrimination in Employment Act was enacted in 1967 and applies to any employer with 20 or more employees, including governmental agencies. A later incarnation of the Act expanded its coverage to include any program receiving financial assistance from the federal government.

Prohibiting discrimination based on age may seem counterintuitive to some. Can’t employers elect not to hire young people for fear that they may be too inexperienced or immature? Yes, of course. The age discrimination laws only apply to discrimination against individuals who are over 40. However, employers (subject to the constraints of other employment laws) can decline to hire someone, or fire someone, or choose not to promote someone under 40 years old for reasons related to that person’s age.

How is Age Discrimination Proven?

As with any kind of employment discrimination, it may be difficult for a spurned employee or would-be employee to prove that discrimination actually took place, and that it was based on age. The plaintiff in such cases must prove by a “preponderance of the evidence” that age was the “but-for cause” of the employer’s action (such as a demotion or firing). “Preponderance of the evidence” means that the employee must show that the evidence makes it more likely than not that age was the “but-for cause.” “But-for cause” means that the employer would not have done what he or she did “but for” the employee’s age (in other words, without it, the discrimination would not have happened).

The standard of evidence used in age discrimination cases was less stringent until last year, when the Supreme Court decided in Gross v. FBL Financial Services that the standard of proof should be higher for the plaintiff. In that case, an employee in his early 50s was demoted by his employer of 17 years and replaced by another employee in her early 40s. The Court ruled that the suing employee had to show that age was the deciding factor. 

How Can I Avoid Age Discrimination?

The best way older, more experienced employees or prospective employees can avoid being discriminated against on the basis of age is to make sure their skills stay relevant. Having a job you do well is great, but employers are always on the lookout for an innovative, cheaper way to get something done. With the incredible pace of change in technological advances, it is imperative that modern employees know how to use these advances. Know your way around a computer. Learn the ins and outs of in-depth internet navigation and searching. Invest in a smartphone or other device that will keep you connected. If you have an idea about a new way to do something, don’t hesitate to tell your employer.

Another piece of advice to help you avoid being discriminated against because of your age is to stay stylish on all fronts. This means you should adapt your clothing and hairstyle to at least relatively current trends. For example, for men, there is no need to abandon pleated pants altogether, but adding an inch to the inseam won’t hurt.

Finally, stay healthy. Being healthy will give you more energy and improve your job performance. Even if an employer cannot discriminate against you based on your age, you can get fired for being tired and grouchy all the time.

Being over 40 does not mean an employee is any less able to be fully tech-savvy or to have great input on how to advance a company. Not only do older employees need to remember this, but employers do as well. If you believe you have been discriminated against at work based on your age, you should consult an experienced employment attorney in your area to discuss your legal options.

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