Age discrimination is the adverse treatment of an employee based on their age—typically over age 40—rather than on their individual merit.
Learn more about what is considered age discrimination and what may happen if it's found in the workplace.
What Is Age Discrimination?
Age discrimination is the unfavorable treatment of an employee due to their age.
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 to people who are applying for a job. Age discrimination is prohibited in any term, condition, or privilege related to employment.
The ADEA and its age discrimination prohibition apply to all private employers who have 20 or more employees and to Federal, state, and local governments. Age discrimination is also prohibited in employment agencies and labor organizations.
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. 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 older.”
But nevertheless, the EEOC found that 60% of people over 50 have seen or experienced age discrimination on the job and 90% say that it’s common.
Although it is illegal for employers to discriminate against older employees, discrimination is difficult to prove. Older employees must prove that they lost a job or didn’t get an assignment solely because of their age.
How Age Discrimination Works
In thehiring process, requiring the age of applicants must only be for a “bona fide occupational qualification.” This means that the employer must demonstrate that age is a reasonable question essential to the operation of the business.
Employers also need to steer clear of the more subtle forms of potential age discrimination. While you may not choose to ask for age or date of birth on your employment application, doing the math based on when your prospective employee graduated is potentially discriminatory if you used this information to eliminate a candidate.
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, it's a good idea to work closely with the EEOC and an employment law attorney.
To provide an example of age discrimination, imagine a layoff situation in a mid-sized manufacturing company. Employees must be let go—but which ones? An employment law attorney would remind you that deciding who is selected for the layoff must be done in a non-discriminatory manner so that you can do the layoff properly and legally.
Therefore, the classifications of every potentially laid-off employee would need to be checked for possible discrimination to make sure that no one class of employee was more adversely affected by the layoff decisions. Otherwise, the company faces the threat of age discrimination lawsuits.
One way to avoid discrimination is to eliminate an entire department at once, making the criteria department-based instead of age-based.
The ADEA also prohibits age discrimination among employees who are older than 40. As an example, employers may not discriminate against a 60-year-old employee in favor of a 50-year-old employee.
Employers must be conscious of the potentially devastating effects—on both employer and employee—of practicing even subtle discrimination based on an individual's age.
- Age discrimination is the adverse treatment of a worker based on their age.
- It's unlawful to discriminate against an employee based on age if they're older than 40; doing so would open a company up to lawsuits.
- You can only request the age of an employee when it is for a legitimate reason that's essential to the operation of the business.
- Employees are protected against age discrimination by the Age Discrimination in Employment Act.