Employees sitting together in a meeting

The Challenges of Winning an Age Discrimination Claim

By Douglas Lipsky

Ageism in the workplace is a growing concern for older workers who remain in the workforce longer by choice or necessity. Although age discrimination violates federal, state, and city laws, proving a claim is challenging. Let’s look at age discrimination in the workplace and how you can fight against it. 

What Is Age Discrimination?

Age discrimination occurs when a job applicant or employee receives unfair treatment because of age. While age discrimination primarily affects older workers, younger people can also face discrimination. Under the federal Age Discrimination in Employment Act (ADEA), employers cannot make employment decisions based on an individual’s age. 

The ADEA applies only to those 40 and older and covers employers with 30 or more employers. Workers in New York have stronger legal protections under the state and city human rights laws, which apply to individuals 18 and older and cover most employers. 

Examples of Age Discrimination 

Age discrimination can occur in several ways, such as:

  • Hiring another candidate only because that person is younger
  • Layoffs that disproportionately affect older employees
  • Not offer training, bonuses, or other benefits to older workers
  • Isolating older workers from younger employees
  • Excluding older workers from meetings and company events
  • Forcing older workers to retire (with limited exceptions)

In addition, harassment – humiliating, offending, or degrading someone because of their age – is considered an unlawful form of age discrimination. Harassment involves more than an offhand remark or occasional teasing. Instead, the comments or conduct must be severe or pervasive enough to create a hostile work environment or result in an adverse employment action. 

How Common Is Age Discrimination?

Age discrimination occurs in many workplaces, especially in the technology and finance industries. In a recent American Association of Retired Persons (AARP) survey, 61 percent of workers 45 and older reported experiencing or witnessing employment discrimination. 

Another study by the Urban Institute found that 56 percent of workers 50 or older were forced out of their jobs before they chose to retire. The research also indicates that discrimination against older job applicants is pervasive. Staged resumes, designed to be identical except for age, were submitted to employers, and older applicants received fewer callbacks than younger ones.

Gender and Race Are Factors

According to a study submitted to Equal Employment Opportunity Commission (EEOC), age discrimination disproportionately impacts women and Black workers as they are more likely to report experiencing or witnessing employment discrimination.

How Successful Age Discrimination Claims?

The Equal Employment Opportunity Commission received about 13,000 age discrimination complaints in 2021. The ADEA requires filing a complaint with the agency before filing a lawsuit in federal court. The EEOC may issue a right-to-sue letter if it cannot resolve the complaint through its conciliation process. In any event, ageism lawsuits can be challenging. 

While a 2020 Supreme Court ruling made it easier for federal employees to prevail in an age discrimination lawsuit, the scope of that decision is limited. Workers in the private sector must still prove that age was a deciding factor in an adverse employment action (the “but-for” standard). Legislation introduced in Congress in 2021 would establish that showing age was one motivating factor is sufficient, but the bill has not passed at this juncture. 

The Takeaway

As the workforce in New York and around the country grows older, age discrimination in the workplace will continue to be a pressing problem. Because of the challenges involved in prevailing in an ageism lawsuit, working with an experienced age discrimination lawyer is essential.

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.