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Recognizing Age Discrimination in the Workplace

By May 14, 2019September 23rd, 2019Employment Discrimination13 min read

Over fifty years ago, Congress enacted the Age Discrimination in Employment Act (ADEA) forbidding employment discrimination against anyone 40 years of age or older. According to the Equal Employment Opportunity Commission (EEOC), age discrimination in the workplace occurs when an employee 40 years or older receives less favorable treatment because of their age. Age discrimination, which is often subtle, can occur at any stage of employment, from application and interviewing to termination. This includes non-consideration for positions, demotions, or job loss.

The United States population is rapidly aging, so the ADEA may be more important than ever. The nonprofit Population Reference Bureau projects that the number of Americans age 65 and older will more than double, from 46 million to over 98 million, by 2060.

Statistics indicate the pervasiveness of age discrimination in the American workplace. In 2018, AARP published a study of 3,900 people over age 45 currently working full- or part-time or actively looking for work. Sixty-one percent of respondents said they experienced age discrimination personally. Of those individuals, 9 out of 10 people believe age discrimination an accepted part of everyday life.

Age discrimination is pervasive across genders and races. Fifty-nine percent of men and 64% of women ages 45 to 74 think people experience age discrimination at work. Seventy-seven percent of black workers, 61% of Latino workers, and 59% of white workers reported experiencing or witnessing it.

Filing Age Discrimination Complaints

Most participants in AARP’s study do not believe they have any protection against age discrimination. Only 3% of them had ever filed a formal complaint with their employer or a federal agency. Cathy Ventrell-Monsees, senior advisor at the EEOC, notes that because age stereotyping and discrimination are so common in the workplace, they are generally more accepted than other forms of discrimination.

The most common ADEA claims are cases of terms and conditions of employment, harassment, and discriminatory firings. “Terms and conditions” include policies like mandatory retirement. Many claims filed are intersectional, which means that plaintiffs allege discrimination based on two factors, such as gender and age.

In fiscal year 2016, 20,857 age discrimination charges were filed with the EEOC. This accounts for 22.8% of the total number of charges (91,503) received. Of those complaints, the EEOC only filed two cases in court. This is largely because workplace discrimination cases are often expensive and legally complicated. ADEA cases accounted for only 2% of cases that the EEOC handled in 2016, despite accounting for almost a quarter of charges filed.

A 2009 Supreme Court ruling, decided 5-4, holds the employee responsible for demonstrating that age was the primary reason for their employer’s action. This reversed previous precedent, which required employers to show reasons beyond the employee’s age for treating their employee the way they did.

Age Discrimination Examples

Have you experienced age discrimination without realizing it? These age discrimination examples may seem harmless at first but are likely to result in an unhealthy work environment, lost wages or termination.

Discriminatory Comments

If your employer makes comments to insinuate you are behind the times and cannot keep up with technological advancements, it could amount to age discrimination. Pop culture references you are chided for not understanding or comments implying that “back in your day” things were done differently can be considered harassment.

One such situation was brought to light in a 2018 case involving a Temple University executive assistant. Ruth Briggs sued the institution for age discrimination after her boss, a Chinese national, told her, “in China, they put women out to pasture at your age.” She was fired from the University after complaining to the human resources department. A jury awarded Briggs compensatory damages of $350,000 for pain and suffering, $250,000 in liquidated damages, and $250,000 for back pay loss.

While organizations are not always so obviously discriminatory, keep a record of any comments related to your age made to you by managers or fellow employees. If you believe you were discriminated against because of your age, file a claim with the EEOC immediately.

If young people consistently get promoted over older employees, despite having less experience, that could also be a red flag. Additionally, slowly being asked not to join meetings or feeling pressure to retire could be signs your employer is trying to get rid of you.

Hiring Practices: Job Descriptions

If you notice that recent young hires are placed in mid-level positions, your employer could be engaging in age discrimination when hiring. Although companies may not intend to discriminate against more seasoned job candidates, the wording of their job descriptions may accomplish just that.

From its inception, the ADEA has generated debate concerning which individuals it actually covers. Some have argued that the law, which prohibits discrimination against people 40 years old and over, covers both people who are currently employed as well as people seeking employment, and others argue it protects only those who are currently working. Judicial precedent is far from unanimous on this situation.

A federal court judge determined in 2018 that an upper limit on work experience in a job description could potentially amount to age discrimination. In the case at hand, an employee worked for a company on a temporary basis and eventually applied for the same job when it opened up as a full-time position. The job posting specifically asked for about ten years of experience. The temporary employee was denied the position because the company did not want “someone with so much experience that they would be inflexible.” While the temporary employee was in his 60s, the job ultimately went to someone who was 36.

In early 2019, the 7th United States Circuit Court of Appeals in Chicago, in an 8-4 decision, stated that the plain language of the ADEA shows that Congress only intended the law to cover current employees. In this case, attorney Dale Kleber, age 58, sued because he was not interviewed for a position that asked for “no more than 7 years” of relevant experience. The attorney hired was 29 years old.

The Supreme Court lost an opportunity to address this question when it declined to hear a case on the topic in 2017. In the case in question, Richard Villarreal sued R.J. Reynolds Tobacco Co. for age discrimination when he was denied work as a territory manager. When Villarreal, age 49, applied for the position, the screening process included age guidelines. Over 1,000 people were hired as territory managers from September 2007 to July 2010. Only 19 were over age 40. The Eleventh Appeals Court stated that as an applicant, he could not sue an employer for “disparate” impact because he was not an employee.

Including age-related questions, such as graduation year and date of birth, on job applications is legal. However, it is also often used to discriminate against older applicants. Employers can avoid liability for age discrimination by ensuring that their hiring materials include language and photographs that showcase diversity and a commitment to a multi-generational workforce. To avoid falling victim to age discrimination during hiring, draw attention away from your age. Remove job experiences on your resume and LinkedIn profile that are more than 15 years old.

Hiring Practices: Advertising

Examples of age discrimination in hiring go beyond job descriptions. Ageism is also visible in how open positions are advertised.

For example, a proposed class-action lawsuit from 2018 accuses Amazon, Cox Media Group, Cox Communications Inc., T-Mobile, Ikea, Enterprise Rent-A-Car, and the University of Maryland Medical System of using Facebook Ads to target younger workers for open positions. A lawyer for the communications union involved in the suit stated, “It’s important that the EEOC engages in a rigorous and comprehensive investigation of Facebook, since Facebook is the largest employment agency in the history of the world.”

Facebook isn’t the only platform allowing employers to exclude certain age groups from job postings. During an investigation into age discrimination in the workplace, ProPublica and the New York Times were also able to buy job ads on Google and LinkedIn excluding audiences over 40.

High Profile Age Discrimination Cases

Although age discrimination remains largely unreported (acting EEOC chair Victoria Lipnic called it an “open secret”), there have been high profile cases in recent years.

Age Discrimination at Fiat Chrysler

Fiat Chrysler Automobiles (FCA) faced a discrimination class action lawsuit for the second time in as many months in early 2017. The lawsuit, filed in the United States District Court, details FCA’s alleged mistreatment of older employees during their performance reviews. As a result, these older employees received fewer promotions and lower pay.

The lawsuit claims that photographs are used by upper-level managers to identify employees during reviews because these managers rarely interact with the workers they review. These managers give lower scores to employees over age 55, despite positive reviews from the employees’ immediate supervisors. The plaintiff’s attorney, Shereef Akeel, explains, “The use of a photograph has no value in determining how well someone performed for a year. Someone can be judged by appearance rather than by their performance.”

This lawsuit came immediately following another filed by a former diversity manager. This suit alleged that for at least the years 2014 to 2017, FCA’s review process adversely affected older and black employees, resulting in lower scores on their evaluations than their younger and white co-workers.

Age Discrimination at Starbucks

In 2018, HuffPost spoke with seven former and current managers over the age of 40 at Starbucks on the topic of age discrimination. Most said they were pushed out or fired; all allege they were bullied by management.

Starbucks is famous, in part, for being a great place to work. The company provides stock options, free online college tuition, and a generous benefits package to its employees. Older staff members say that, over the last five years, Starbucks replaced older managers with younger ones. The people whom HuffPost interviewed had, for the most part, been longtime employees. They all recalled being passed over for promotions, being treated unfairly at work, and given fewer responsibilities over time. Ultimately, they were forced out or fired.

Several of the employees said they complained to human resources. However, the complaints did not result in consequences for the managers who discriminated against them. A Starbucks spokesperson stated, “We have zero tolerance for any sort of harassment of any kind and have a very clear set of guidelines when any type of harassment or discrimination claims like this are made.”

Seasons 52 Settles in Hiring Discrimination Lawsuit

National restaurant chain Seasons 52 agreed to pay $2.85 million to settle a nationwide age discrimination class-action lawsuit brought by the EEOC in 2018. They also agreed to a consent decree that requires changes to Season 52’s recruitment and hiring processes. This includes employing a compliance monitor charged with ensuring Seasons 52 follows the decree’s terms.

The EEOC alleged that applicants age 40 and older were denied positions at Seasons 52 restaurants nationwide, violating the ADEA. More than 135 applicants testified that Seasons 52 hiring managers asked them their age or made age-related comments. Applicants recounted statements such as “Seasons 52 girls are younger and fresh” and “Most of the workers are younger.” Additionally, records indicated that Seasons 52 hired applicants 40 years or older at a significantly lower rate than applicants under age 40.

60-year-old Salesperson Awarded in Age-Discrimination Case

A 60-year-old man who had been the top-ranked salesperson for a Western New York company recovered a $225,000 settlement for being terminated due to his age and health issues. The client, who felt he had unjustly been the victim of age discrimination, initially contacted Jeffrey Freedman Attorneys, PLLC.

“Out of six salespeople, this gentleman was one of the top salespeople as far as making the most sales for the company for several years. When he needed a week off to have knee surgery, however, the employer overwhelmed him with projects that made it impossible for him to perform at his usual level,” said Jeffrey Freedman, managing attorney. “They then fired him, stating ‘poor performance’ prior to his surgery.”

Fortunately, the client kept records, including emails, and through discovery, it was determined that the employer lied to the EEOC about the timeline of events. In fact, the employer knew about the employee’s medical condition before the decision was made to terminate him. “Emails showed the owner had knowledge of the client’s need for surgery before he piled on the assignments in an attempt to justify firing him,” Freedman said.

When the employee decided to sue for age discrimination, he was first offered a settlement of $3,000, which he felt was not sufficient. One of the factors in assessing the damages of a person who has been discriminatorily terminated is their back wages (“backpay”) and potential lost future wages (“front pay”). Since this man was 60, he had difficulty finding another job after he was terminated. Thus, he accrued almost two years of backpay. Also, due to his age and the time that he was unemployed, he had a legitimate claim for front pay as well, as it was anticipated he would have difficulty finding employment in the future.

Google’s Age Bias Settlement

Cheryl Fillekes wasn’t hired at Google after interviewing four times in seven years. She alleged that Google did not hire her because of her age. After she filed her claim, 226 other people joined her in a class-action lawsuit against Google.

Fillekes stated she possesses “highly pertinent qualifications and programming experience.” However, Google attested that she and other applicants they did not hire lacked the technical aptitude required.

Google continues to deny that it discriminates based on age. However, they agreed to settle the case in mid-2019 by paying $11 million. Google must also establish a unit to train managers and all employees about age bias in the workplace. The company will create a group focused on age-related diversity and investigating any complaints received from recruiting regarding age bias.