Age Discrimination in the Workplace

By Douglas Lipsky

How can I prove I was the victim of age discrimination?

Americans today are living longer and working longer than ever before. Sadly, older employees continue to face discrimination in the workplace. Age discrimination in the workplace is illegal under the Age Discrimination in Employment Act (ADEA) of 1967, the New York State Human Rights Law, and the New York City Human Rights Law. Despite these laws, employees over the age of 40 often find themselves rejected for jobs for which they are qualified, fired due to their age, or passed over for promotion. Our New York City employment discrimination attorneys at Lipsky Lowe explain what constitutes age discrimination and what you should do if you feel you have been subjected to age discrimination.

The Age Discrimination in Employment Act (ADEA), New York State Human Rights Law, and the New York City Human Rights Law

The ADEA is the federal law that protects employees and job applicants over the age of 40 from discrimination due to their age in hiring, firing, promotion, compensation, and other conditions of employment. The NYSHRL is the state law and NYCHRL is the city law that provides the same protections. Age discrimination is unlawful in all stages of the employment process, including the posting of job advertisements, interviews, salaries, evaluations, disciplinary actions, and much more.  

Proving Age Discrimination

If you are an older employee who has lost his or her job, or a job applicant that was rejected for a position in favor of a younger employee, you may want to explore your ability to sue for age discrimination. Every year, over 20,000 employees will file complaints of age discrimination. A successful age discrimination case could result in financial compensation, the return of your position, and more.

To succeed in an age discrimination case under the ADEA or NYSHRL, you will need to have direct or circumstantial evidence of the discrimination. Direct evidence is strongest and could include statements made by managers or others that relate to the adverse action taken against you do to your age. For example, if your employer wrote you an email stating that they were letting you go because you are close to retirement age and the company wants to go with a younger image, you would have concrete proof of age discrimination.

Direct evidence is not common, and in its absence, you must rely on circumstantial evidence. Circumstantial evidence includes any evidence that tends to show you were subject to adverse action due to your age. This could include evidence that your employer replaced you with a younger employee.

The burden under the NYCHRL is far less. The burden is only to show age was a – not the – factor in the employment decision. That is, the employee must show only that he or she was treated less well because of his or her age. Some courts have gone so far to say, under the NYCHRL, the burden is on the employer to show age was not a factor.


Contact an employment discrimination attorney to get started protecting your legal rights today.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.