Companies Paid Big for Age Discrimination

John Krautzel
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In February 2014, a Los Angeles Superior Court awarded Bobby Nickel $26 million in an age discrimination lawsuit against Staples Inc. Nickel's claim cited instances of harassment, derogatory name-calling and wrongful suspension from managers who tried to intimidate him into resigning. Nickel's experience is a troubling example of how companies nurture the belief that workers over 40 are incapable of making valuable contributions to the workforce. An increase in high-profile cases may force employers to rethink their hiring practices.

What Qualifies as Age Discrimination?

The Age Discrimination in Employment Act of 1966 establishes workers who are age 40 or over as a protected class, and the Equal Employment Opportunity Commission is the federal agency in charge of reviewing discrimination claims. The goal of ADEA laws is to prevent companies from excluding mature workers from the hiring process or dismissing them from existing jobs for age-related reasons. This includes discouraging workers from applying by peppering job posts with age-specific language, such as "recent grad" and "young blood."

For 64-year-old Nickel, the case was clear-cut. In 2008, Staples acquired the company Corporate Express, which had employed Nickel and shown satisfaction with his performance since 2002. Nickel was suspended for taking a bell pepper from the cafeteria, and staffers allegedly referred to Nickel as "old goat" and "old coot." A receptionist also admitted that she was asked to falsify a statement accusing Nickel of poor conduct, but she declined.

Fostering a Culture of Discrimination

Mature workers are wise to be wary of employers who stress a "youthful" company culture  and justify their hiring decisions for branding purposes. In 2010, several TV networks and movie studios collectively paid $70 million in settlement arrangements with writers who accused the companies of excluding mature workers from productions marketed to younger audiences.

Similarly, Maria DeSimone, a 40-year-old experienced waitress, was passed up for a server position at Texas Roadhouse in 2009 in favor of a 19-year-old with no restaurant experience. In response to the pending class-action suit, Texas Roadhouse defended its questionable hiring practices by claiming that its requirements — such as wearing jeans, line dancing and working evening and weekend shifts — indirectly reduce the number of mature hires.

Employers are most at risk of facing discrimination claims if they demonstrate a pattern of negative behavior toward mature workers, including derogatory comments and bullying. In 2012, Debra Moreno was awarded $193,236 from a health care company after she was fired in 2008. Although Moreno consistently received high ratings for her work, she discovered that the company owner referred to her as a "bag of bones" and remarked that she sounded old on the phone.

Facebook settled a claim with the California Fair Employment and Housing Department in 2013 for stating a preference for 2007 or 2008 graduates in a job posting. At age 22, Mark Zuckerberg had previously drawn attention at a conference in 2007 when he stated, "Young people are just smarter."

When Age Discrimination Goes Unpunished

Age discrimination claims have increased over the past two decades. From 1997 to 2007, annual claims ranged from 16,000 to 19,000, compared to 23,000 to 25,000 annual claims from 2008 to 2013. Google settled a high-profile case in 2007, and as of 2016, the company is fighting a class-action suit that started in 2011.

Silicon Valley is infamous for finding clever ways to circumvent discrimination laws, such as using the term "digital natives" in place of "recent grads." While this loaded language does not specify age, it communicates a preference for millennial workers. Payscale data estimated that Google's average employee age is 30, while Facebook, LinkedIn and Apple rank at 28, 29 and 31, respectively.

Age discrimination complaints are difficult to prove, especially for job applicants who have little knowledge of how hiring decisions are rationalized. Many companies are also motivated to lay off mature workers because of their higher salaries, not their ages. A strong case must show evidence that age drove a hiring or firing decision, and the central ADEA laws only apply to companies with 20 or more employees.

Attorney Ingrid Fredeen, the vice president of NAVEX Global, cautions businesses against using language with strong age connotations, which can drive away qualified applicants even when discrimination was not intended. Employers should focus on screening candidates for the experience and personality they need to succeed in a position, rather than making assumptions about how mature workers think and interact in the workplace.

Photo Courtesy of Garlson Welland at


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  • Jay Salazar
    Jay Salazar

    Wonderful article.

  • GLENN S.
    GLENN S.

    Exquisitely written. Another of my favorite loaded comments is, "over skilled" and "tenured". Keep it up. The culture here does not seek experience and maturity.

  • Nancy Anderson
    Nancy Anderson

    @Kathy thanks for your comment. Maybe it's age discrimination. Did you ask what the new direction was and why you would not be a good fit? Did you ask if there was anything that you could do to stay with the company and go in this new direction? Many times we are afraid to ask because we are afraid of the answer.

  • Kathy C.
    Kathy C.

    What if you are told the company is moving in a New Direction and they don't think you would be a good fit. Then you look through the company and and size the employees up and they are 99% all in their 20,30,and 40's. Age descrimination?

  • Nancy Anderson
    Nancy Anderson

    @Catherine thanks for your comment. I am sure that many others have the same question. It's tough to prove. Some of the ways would be through direct evidence such as you overheard a conversation where age-related terms are used - like old, or fart, etc:. Another way is harassment that is age-related. Maybe you start getting disciplined now whereas before you were their star. Maybe the company sponsors events and outings and they pick you to stay and answer the phones because it might be too challenging for you to be involved in the events. How about seeing a lot of promotions around you but none for you. Or maybe you noticed that there are more millennials in the company than ever before. Many ways to check but, still, it's hard to prove.


    I'm interested in how people prove that age discrimination took place when they were fired. I'm guessing most people this would apply to would not be able to obtain evidence that they were fired simply because of their age or their higher salary because they have been at a company for a long time. What kind of evidence is needed in these cases? Is it simply enough to show that an older person had consistently good reviews when they were fired? Or do you need proof of the bosses actually talking about firing someone because of their age?

  • Nancy Anderson
    Nancy Anderson

    Thanks for the comments. @Hema I had to laugh at yours because I have always wondered the same thing. When I was younger, I would always seek out a more mature coworker for advice and training. I never saw them as being dinosaurs like they are seen today. Age discrimination is huge in our work world today. It amazes me that we don't hear about it as much as we should. Another thing - not all mature workers are breaking the bank in terms of salary. Just because a person is more mature doesn't mean that their salary is prohibitive. On the contrary, they could be making less than that new 20 year old that just got hired yesterday. Age discrimination is rampant and very real. What is it going to take to stop it? Would love to hear your responses.

  • Hema Zahid
    Hema Zahid

    I’m surprised to read that age discrimination exists in Silicon Valley. I would have thought that talent and not age mattered for technology companies. I wonder what the company founders are going to do when they themselves become old. There needs to be more awareness about age discrimination and workers of all ages need to know what their rights are.

  • Lorri Cotton
    Lorri Cotton

    I am so glad that those banks had to pay up. They were using some very nasty practices. This is a very explicit example of how language can be used as a weapon, It all goes back to the "Nudge" theory, coined by Cass Sunstein. Basically, the theory goes, that if you perform certain actions, such as putting unhealthy foods out of sight so that people must ask for them, you indirectly get them to eat healthier, because most won't go against the group and ask for the forbidden food. It's a very sinister and insidious way to control people and circumstances. That companies use these tactics is a frightening thought. Also, I wasn't aware that age discrimination was so widespread. I'd like to say that this shocks me, but these days are so surreal that nothing shocks me anymore.

  • Tara Avery
    Tara Avery

    This is very troubling. It seems quite incomprehensible that experience--real, on-the-job experience--is so completely overlooked when age comes into question. This sentence in particular: "Many companies are also motivated to lay off mature workers because of their higher salaries, not their ages." is concerning. The salary of a mature worker reflects the experience they bring to their job; constantly replacing workers with untrained and younger individuals seems like it would have a negative impact on overall productivity over time.

  • Jacqueline Parks
    Jacqueline Parks

    I strongly agree with the final point of this article. Employers shouldn't discount older workers regardless of the law. The right employee for any position could be lurking in an age group that a hiring manager initially feels is less than ideal. I am an older applicant, and I feel that my wisdom and experience greatly outweigh any disadvantages I might have from not growing up in the digital age.

  • Sylvia L.
    Sylvia L.

    As @Shannon pointed out, this ageism works both ways. I think more attention is drawn to the discrimination against older workers because older workers tend to be more aware of their rights and more willing to fight for them. However, my experience has been that younger people are not given the same opportunities many times. There is an underlying belief that they'll be irresponsible, change careers too soon, have babies, etc. Perhaps a lot of the perception is directed by the hiring person and/or upper management.

  • Jay Bowyer
    Jay Bowyer

    This current (and very ageist) attitude toward workers over 40 really baffles me. Given their experience, older workers ought to be valuable assets to their employers. So why don't some employers see this? If anything, I think we should be aiming to be inclusive — particularly given our rapidly aging population.

  • Shannon Philpott
    Shannon Philpott

    While I'm glad to see that this issue is coming to light, especially in the courts, I think that age discrimination goes both ways. In my 20s, I had several employers fully admit that they were concerned about hiring me because they were worried that I would not fit into the company culture because I was young. One employer admitted (years after the fact) that the best thing they ever did was hire someone young with renewed energy to inspire the employees who had been working for the firm for more than 20 years.

  • Nancy Anderson
    Nancy Anderson

    Thanks for the comments. @William you would think that would be true but, sadly, it's not. Companies still want to hire younger workers thinking that they can get digital natives and pay much less than they would for a non-digital native. But truth be told, I am from the older generation and I started using computers in 1981 - even before the Internet. Once the internet started, I was one of the first users of it and have been using it since. So, to say that you won't hire me because I am not a "digital native" would be to let all of my years of experience go to waste. I might be able to run circles around some of the younger generation. And the experience and knowledge of the more senior workers should always be taken into account. Salary is not necessarily the issue that companies make it out to be. Yes seniors typically do make a greater salary than that high school graduate but it's not true across the board. Many of the older folks just want to work. They are not seeking a huge salary but just a nice working atmosphere where they can earn enough to meet their needs but also to have a purpose. Today it's like if you are older than 45 you can't get hired. So crazy the way that companies think. Makes your wonder why they are this way and where they are deriving their information! All companies should have a diverse workforce.

  • William Browning
    William Browning

    I don't understand how and why companies foster this culture of age discrimination. We live in the 21st century, not the Dark Ages. My dad, in his late 60s, knows how to use a smartphone and a laptop computer just as well I can and he's not a "digital native." Employment, hiring and promotions should be based on merit as opposed to companies that stress a "youthful" culture. I would think that employers know about these lawsuits and then stop before they have to pay an expensive settlement.

  • Vivian B.
    Vivian B.

    The article points out that one of the motivations behind decisions to lay off older workers is "their higher salaries, not their ages." While I agree with this observation, I would also add that this could also be a factor in companies reluctance to hire middle-aged and elderly applicants as well. Greater career experience brings with it an expectation of a higher salary. Additionally, more mature workers often have a stronger grasp of their labor rights than recent graduates do, making it harder for unethical managers to exploit them.

  • Jacob T.
    Jacob T.

    The most discouraging part of this information to me is that we continue to point at 'companies' that commit or foster this type of behavior. The reality is not no hiring manager is making a unilateral decision to hire a particular age, gender or race; that is a corporate culture decision that is typically incubated from above - to address kind of issue, people should be held accountable, not just corporations.

  • Katharine M.
    Katharine M.

    It's scary to read about this, and disheartening to hear about some of these workers' experiences. It's tough because you can't usually prove that a person wasn't hired because of his/her age. There's just so much more to consider than being a "digital native"- these employers really could be missing out on something. In particular, when I think about a company like Google: people of all ages use Google, so shouldn't people of all ages work there, so as to ensure that the site appeals to/works for people of all ages?

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