The Employer's Guide to Age Discrimination

Joe Weinlick
Posted by in Career Advice


Age discrimination refers to a business that treats an applicant or an employee differently or less favorably due to the employee's age. Federal law prohibits discrimination against people 40 or older based on their age alone. Employers need to know the basics of age discrimination so that workers and job candidates are treated fairly based on their skills, experiences and work ethic.

Major Points of Federal Law

Businesses may not discriminate against people regarding any facet of their employment, even before they work at the firm. Age bias is illegal when it comes to personnel decisions such as hiring, firing, promotions and layoffs. Age cannot be a factor in someone's pay, fringe benefits, job assignments and training. The main federal law that deals with age bias is called the Age Discrimination in Employment Act, or ADEA.

This law applies to any business or company with 20 or more employees, any labor organization with at least 25 members, and any employment agencies. Employees of government agencies on the federal, state and local levels are also protected by federal laws. States may have additional provisions against age discrimination, and those laws vary by jurisdiction. Time limits for taking action on age bias claims vary by state as well.

Other employees at work cannot harass co-workers about their ages, either. This means someone can't make offensive remarks about a co-worker's age on a severe or frequent basis. Federal law defines harassment as an environment in which someone faces a hostile situation, making it hard for them to conduct their work duties in a normal manner. This hostile environment could lead to someone's quitting, firing or demotion. A victim of harassment due to age may see harassment from a supervisor, co-worker, client or customer.

Federal laws provide broad definitions of age discrimination, while state laws may add more protections. Hypothetical examples give employers a better idea of what entails age bias in the workplace.

Discerning Age Discrimination

The ADEA prohibits employers from having policies that have a disproportionate impact on older workers versus younger workers. For example, an employer cannot make an announcement that it only hires people with less than 15 years of experience within the particular industry. Most of the time, this type of policy discriminates against someone who is older, despite his qualifications, skills, experience and potential pay that fit the job description. Instead of a merit-based hiring system, this hypothetical example shows an age-based system.

Employers can't reduce someone's benefits based on age unless the actual expense of that benefit increases with age. To comply with the law, companies usually pay the same amount for benefits given to younger workers and older workers alike. For example, an HR department may determine that Acme Brick will pay $10 per month into each employee's life insurance policy to make everything equal. However, younger people generally receive greater coverage from life insurance for the same amount of money. The fact that a 25-year-old worker has more life insurance coverage compared to a 55-year-old for the same price is not age discrimination because the employer pays the same for each worker.

Employers cannot retaliate against a worker for filing an age bias claim. This means a business can't fire, demote, cut pay or harass someone for taking proper investigative steps against a company regarding age discrimination. Proper steps include any litigation in court.

Companies cannot layoff or fire a group of workers based on age or seniority alone. For instance, when a business announces layoffs, most of the workers are older and make more money. Meanwhile, younger workers stay on simply because they don't make higher wages due to less experience. This type of move has an adverse effect on older workers, and therefore it could be age discrimination. However, there are exceptions if the company provides compensation for the mass dismissals.

Exceptions to the Law

In the case of layoffs, a company can compensate workers with a severance package based on the worker's pay scale. Employees may sign a legal form waiving their rights to sue a company based on ADEA claims, but the employer must provide a valuable consideration under this stipulation. These valuable considerations must be above and beyond any benefits the company already owes to an employee; otherwise, this type of waiver does not comply with federal law. To protect his legal rights, a person has 21 days to review the agreement before signing it, and then another seven days to revoke the agreement after signing it.

One special and very limited exception to the law deals with bona fide occupational qualifications. For example, a television show or a movie needs actors that should look like younger people, such as teenagers or children. Therefore, a youthful appearance is a necessary part of the job. This type of job doesn't fall under the auspices of the ADEA.

Other exceptions to age bias laws also exist. Companies may require executives to retire upon reaching age 65 if the executives stand to earn more than $44,000 per year in pension payments. Law enforcement agencies, independent contractors, military personnel and elected officials don't have the same protections as ordinary employees.

Employers have a duty to treat all workers as fairly as possible. Age discrimination in the workplace is wrong, and it's also illegal. Employers should consult with the Equal Employment Opportunity Commission to set up a proper framework that prevents age discrimination in the workplace.

Photo Courtesy of Terry Marsh at Flickr.com

Comment

Become a member to take advantage of more features, like commenting and voting.

  • Nancy Anderson
    Nancy Anderson

    @Anna thanks for your response. We all get excited during an interview. (LOL) Take a deep breath as you are walking in the door and let it out slowly. Have everything that you need on hand - such as extra copies of your resume and other pertinent information. Make sure that you have a copy of your resume in front of you during the interview as that will prod you. Prior to the interview, write down questions that you would like to ask and keep those in front of you, also. Take notes during the interview. Remember, you are interviewing the company as well. Make s note for yourself to make sure you ask for business cards of everyone you interviewed with so that you will have them when you send the thank you card(s). And remember to smile and breathe!

  • Anna T.
    Anna T.

    Thanks, I get a lot of interviews but I don't get the job, so that's the problem. I'm practicing my delivery and reworked my presentation statement to sound more confident. I forget things during the interview and on this site saw an article that said to send out a personal letter rather than an emailed thank you, I also forget to ask for their card! I think I get too excited during the interview!

  • Nancy Anderson
    Nancy Anderson

    @Anna thanks for your comment. Good for you for continuing your education. There's no reason that you can't go for a job now stating that you will have earned your degree by the end of the year. But never give the impression that you are just looking for a stop-gap position. That will certainly take you out of the running. Although in today's world, 2-3 years on a job is norm. Ten years ago it was 3-5 years as the norm. If it were me, I would only accept a position in my new field and would not be looking to move on after 5 months - especially since you are an older job seeker. Sorry to say that you may not have very many chances at interviewing for positions since you are older. Apply for a position that you want to work in now and in the future. Best of luck.

  • Anna T.
    Anna T.

    I am currently looking for a job and am older. I'm getting a second bachelor's in accounting in December but would like a job now since I only have a few hours left on the degree. I think part of the problem may be that they think I might graduate and leave which may be true. lol.

  • Nancy Anderson
    Nancy Anderson

    @Gracinia thanks for your comments. Unfortunately this happens all of the time. You might want to consider looking for a recruiter to help you get interviews, etc. The recruiter would be working for you. You can explain your frustrations to the recruiter and the two of you can work on getting you the right interviews.

  • Gracinia M.
    Gracinia M.

    Yes, when become a certain age groups it's hard to find a job in your field. I am getting frustrated and angry but people of certain age or more Dependable, reliable, an more stable.

  • LIAIGA T.
    LIAIGA T.

    The problem is that such childish attitude and behavior is still being practiced everyday particularly in small rural communities all over the country. The sad part is, is that even both state and fed governments are practicing it in these rural communities and get away with it particularly in "good old boys" towns.

  • Izaz k.
    Izaz k.

    thanks for good and such a nice comment

  • Muhamedali E.
    Muhamedali E.

    There cannot be any age discrimination.A man over 65 with good health is better than a youth with bad health.Moreover, aged people have more expertise.

  • Nancy Anderson
    Nancy Anderson

    @Trudy thanks for your comment. I agree but they still do it. When is the last time you submitted a job application that did not require a high school graduation date? I don't know how they get away with this. I thought that there were laws against this but they all seem to be doing it and getting away with it. I agree, also, that a company should not assume that, just because a person is older, they will command a huge salary. An older person's needs are typically smaller now that they have raised their families and don't need the huge salaries. Makes me sick that companies discriminate and get away with it.

  • Trudy W.
    Trudy W.

    I agree with Kevin. Companies should not "get around the law" by asking for dates. This is strongly prevalent in the education field. If supervisors are concerned about paying a more experienced employee more, they should ask directly if older workers are willing to start at a lower rate and not simply discount them. It truly makes me sick.

  • Nancy Anderson
    Nancy Anderson

    @Kevin it truly is unfortunate that companies discriminate due to age and still get away with it. And that they get around the law by asking for high school graduation dates. There's not much you can but input the date and hope for the best. It's a standard rule of thumb today that you only include about the last ten years of pertinent information on your resume and that you try to keep your resume to one page, if possible. Have you attempted to get a position through a temp agency? That might be an option for you. The agency will know how old you are but they can play you up in a way that it doesn't matter. And, as a temp worker, once in the door, you can show your worth and start your bid for a more permanent position.

  • Kevin Kubler
    Kevin Kubler

    Age discrimination is out there, real & evident. I cut my experiences in 1/2 because they tend not to respond to someone having 25+ years in industry. I get lots of calls, but when I advice of the earlier experiences during phone interviews, it almost always ends up without follow up. I have even seen (master lock) ask for high school graduation dates on the online application process? Should me more do you have a Diploma or not, and left at that. Real problem is who cares, and how do you prove it!! Racial discrimination takes a "backseat" to age, any day of the week, as far as incidents.

  • Nancy Anderson
    Nancy Anderson

    @Lawrence thanks for your comment. Have you attempted to contact any of these companies and ask why you did not get called in for an interview. Maybe they won't tell you but maybe they will. You need to figure out if it's your resume and cover letter that's turning them away or something else. Are you networking in your field? What about former coworkers from other companies? Have you reached out to them? It might not be age that is keeping the jobs away. It is hard to prove discrimination unless the company specifically states that it was your age that turned them away. Figure the odds on how many will answer that way! So it is true - discrimination is very difficult to prove as a reason for not even getting an interview. All you can do is keep turning over those stones until you turn over the right one.

  • Lawrence J.
    Lawrence J.

    My experience has been the same. Not even a reply or interview. It is very difficult to keep trimming a resume and underselling oneself in a bid to get an interview so as to be able to then sell my experience. Also, how can one who is not employed by the company prove discrimination. It is a shame that American employers cannot see the how this practice is different from the wisdom of the competition of the East.

  • Nancy Anderson
    Nancy Anderson

    Thanks for your comment. So sorry to hear your plight. @Gail when you see a job posting that looks good, try to some research on the company before you apply. Check them out on GlassDoor or LinkedIn and see if you can find out about the demographics. If you look on LinkedIn and see that the larger percentage of workers are in their 20's, more than likely you won't be a viable candidate. That's not always the case but the majority of time it is. Look for a company that will value your experience and maturity. Same for you @Deborah. Try to find a company that has a good mixture of employees across the board. I have felt that way myself - that the executives want the young good looking ones regardless of experience. In a case like that, I would move on. Those young pretty ones are going to be in their 40's and 50's some day and will face the same discrimination. Sadly it's just the circle of life. Try looking for a position maybe with a non-profit. Have you utilized any temp agencies in your area. Sometimes that's the best way to get your foot in the door and prove that you have the maturity level as well as the experience to make you an invaluable employee. Best of luck ladies.

  • Deborah W.
    Deborah W.

    I have found the EXACTLY SAME THING! I have 15 years experience and the job ALWAYS goes to a younger woman! Employers need to rethink the value that older women bring to the table, no more pregnancy leaves, maturity, not as many call-ins... the only thing I can see from my experience as to why is alot of male executives want a young pair of legs and other things to look at all day, fools.

  • GAIL HAUBERT
    GAIL HAUBERT

    I have been an Administrative Assistant for over 18 years I have a wealth of experience. I relocated to Stafford VA thinking I would have no problem finding a job. I have a great resume and even went to a few group interviews where I was clearly most qualified. My age is the only thing I can think of that would keep an employer from hiring me. I just don't understand I am planning to work for many years yet.

  • Nancy Anderson
    Nancy Anderson

    Thanks for the great comments! Age discrimination certainly is prevalent in our workforce. In spite of the regulations on the books that are supposed to offer protection to mature workers, companies still put older workers out to pasture. @William I was thinking the very same thing - what if the government said that a woman must have her children before she is 30? Or a company says that we can't hire you until you are at least 40! Sort of the reverse of what we are discussing but it's still age discrimination. Companies should make it a point to have workers from all age categories so that they can learn from each other and grow in their field. Just like years ago, when EEO became so prevalent, companies had to hire so many women, so many with disabilities, so many from different ethics groups and so on. @Jacob companies hire contractors because they don't have to pay for healthcare or benefits. It is possible that the contract workforce over 40 could be the next casualty. We hope not. However, if it should, we only hope that laws will be passed to protect them also.

  • Jacob T.
    Jacob T.

    It is great that these laws are on the books to afford some protection to employees, but as more and more jobs are filled by contract positions, is anyone working to hold companies accountable for their treatment of those employees? With limited legal protections, the growing contract workforce over the age of 40 seems likely to be the next casualty in this process.

  • Hema Zahid
    Hema Zahid

    I think companies should regularly train their staff on what qualifies as age discrimination in the workplace. Even if a company is new and only has younger staff, some are bound to work there until they are considered old and it’s important for them to know what protections are in place for them. Such training would benefit the company as they could brush up on how to prevent any form of age discrimination.

  • Lorri Cotton
    Lorri Cotton

    It's a great thing that someone wrote an article to make clear the rules on age discrimination. I think that it is disgusting, what some companies are doing, Things like only hiring people with little experience, to avoid hiring an older worker. These guys need to know the rules on hiring and discrimination, and they also need to follow them. Why wouldn't a company want someone with so much invaluable experience? I can't get my head around this one.

  • Tara Avery
    Tara Avery

    Thank you for this interesting article. I wasn't aware so many laws existed to protect mature workers. I know it can be challenging to enforce these, especially if the employer frames it like their firing someone for reasons other than age, but I'm glad mature workers have some leg to stand on. Mature workers are vital in the workplace; they act as mentors, helping younger employees understand the work. Learning from someone who has real experience--not just book-based or school experience--strikes me as absolutely necessary for businesses to succeed.

  • D. L.
    D. L.

    I'm glad there are laws that protect older workers. When I was younger, they used to force people to retire at a certain age regardless of their ability to do the job. However, despite the protections, age discrimination exists, and it's done routinely, either during the hiring process or on the job. Like you alluded to in your article, potential employers can tell you're an older worker simply because of the number of years of experience you have. The problem is that it's very hard to prove that you were discriminated against even if it's obvious.

  • Jacqueline Parks
    Jacqueline Parks

    I was unaware that there are so many protections for older workers. As someone who falls into this category myself, I am happy to know that these protections exist. The anti-harassment clauses are particularly important. I have worked in places where there were negative comments directed at older workers. This protection will ensure older workers find suitable positions and have a work environment conducive to doing their best work.

Jobs to Watch