Lipsky Lowe, LLP discusses the best ways to prove age discrimination in the workplace.

How to Prove Age Discrimination

By Douglas Lipsky

As the workforce grows older, more employees will experience age discrimination. If you have been denied employment due to your age, have been passed up for a promotion in favor of a younger worker, or have been subjected to unwanted comments and harassment, you may have a valid age discrimination claim. The best way to protect your rights is to consult an experienced employment law attorney.

How are older workers protected from age discrimination?

The Age Discrimination in Employment Act (ADEA) of 1967 is designed to protect applicants and employees who are age 40 or older from discrimination regarding any employment decision. This includes:

  • Hiring
  • Compensation
  • Promotion
  • Termination
  • Any term, condition, or privilege of employment

In particular, the ADEA covers advertisements and job notices, apprenticeship programs, pre-employment inquiries, and benefits. It is worth noting that this federal law only applies to employers with 20 or more employees, however, the New York State and New York City Human Rights Law applies to virtually all employers and prohibits discrimination against those who are 18 years of age or older. 

Proving Age Discrimination

While proving an age discrimination claim can be complicated, signs of age discrimination include:

  • Harassment: Offensive comments, conduct or displays about your age that create a hostile work environment. Workplace harassment can come from a supervisor, co-worker, client or customer. To have a viable claim, the conduct or comments must be severe or pervasive enough to interfere with your ability to perform your job. 
  • Discipline: Sudden, inexplicable disciplinary measures at work may also be a sign of age discrimination. If you are singled out for coming in late while other younger workers are not, your employer may be targeting you because of your age.  
  • Hiring and Promotions: Being passed up for a job or promotion is a common form of age discrimination that requires showing (1) direct evidence (e.g. an interviewer makes age-related comments), (2) disparate treatment (you were denied employment due to your age, not your qualifications), or (3) disparate impact (the hiring requirements disproportionately impact older workers. 
  • Exclusion: A more subtle form of age discrimination is exclusion, which may occur when you are not invited to participate in meetings, conferences, company events, or training programs that are attended by younger workers. 


While these forms of age discrimination may be difficult to identify or substantiate, there are also overt forms of age discrimination, such as a supervisor explicitly saying that your position was eliminated because you are too old. In any event, it helps to keep records of any workplace incidents that may be construed as age discrimination. Although filing a claim against your employer may be an uphill battle, a skilled employment law attorney can help to enforce your rights. 

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.