What is age discrimination?
The Equal Employment Opportunity Commission (EEOC) defines age discrimination as when an applicant or an employee is treated less favorably because of their age.
Age discrimination can happen to younger and older workers, but only people over the age of 40 are protected on the national level through the Age Discrimination in Employment Act (ADEA). Some state laws, however, protect younger workers. Here are some other things worth noting from the EEOC:
It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.
Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.
How common is age discrimination in the workplace?
A few years ago, the Federal Reserve Bank of San Francisco released one of the largest-ever studies on age discrimination in the workforce. After strategically submitting more than 40,000 fake applications to low-paying jobs often held by older workers (administrative assistants, janitorial staff, etc.), they found that young and middle-aged applicants had higher callback rates than older ones, and older female applicants fared far worse than their male counterparts.
Such findings are grim, but probably not surprising to older workers. Despite having protections in place to guard against ageism, age discrimination continues to pervade American companies. The AARP says, among workers ages 45 to 74, 72 percent of women and 57 percent of men have experienced age discrimination. Of the 72,675 charges of workplace discrimination that the EEOC dealt with in 2019, 15,573 of them were linked to age. That number should be zero.
Hiring isn’t the only time this problem crops up, either. Age discrimination happens at every stage of employment—hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, etc.—and oftentimes, it’s hard to prove.
Read more: 6 Times You Should Talk to Human Resources
What age discrimination in the workplace looks like
Alix Rubin is an employment attorney practicing in New York, New Jersey, and Pennsylvania. She says age discrimination can be outright—a hiring manager telling a person over 40 they’re too old for a job—or more subtle, like someone assuming an older employee can’t use technology or doesn’t understand social media. “There are certain catchphrases you hear often,” she says, and they’re meant to imply that, because of age, an employee’s contributions are not valuable.
These are a few examples of what age discrimination looks like in the workplace:
Your employer makes comments about your age
If your employer is taking shots at your age (using nicknames, implying you don’t understand recent technology, purposefully excluding you from conversations about current events or pop culture), this is considered harassment, and they could be trying to get you to quit because they can’t legally fire you. “Unless the employer has documentation of low employee performance in this area, it’s likely age discrimination,” Rubin says.
All the new hires are young
Does your company hire only 25-year-olds to fill open roles, even if they’re mid-level positions? They might not be shifting business practices to lure millennials; they could be discriminating.
Your promotion goes to someone else, a much younger someone else
You’re the most qualified person for the job, but somehow, Jenny, who’s been out of school for a year, snags the new role. Rubin says this kind of discrimination is easier to spot—especially if you’ve been at the company for a long time and the person is significantly younger than you.
Your employer starts to “lighten your load”
When an employer does this, it’s often an attempt to phase older workers out of certain projects, and it’s masked as a benefit to you, which makes it all the more frustrating.
You're being left off of meeting invites
Employees who feel isolated don’t usually stick around, so by leaving you out of company conversations, your employer might be trying to make you feel like you no longer belong.
You're encouraged to retire
This is pretty blatant and hard to turn down, but sometimes companies offer older employees retirement packages to force them to “amicably” leave. Rubin says an employer hinting at this possibility in the future might say something like, “Isn’t it time you start thinking about retirement?”
You’re being unfairly punished
You have a history as an awesome employee, but your boss just put you on an improvement plan or is reprimanding you more harshly than a younger employee. Red flags here indicate they’re trying to find grounds to fire you or force you to leave. Again, Rubin says companies would need documentation of you not fulfilling job requirements to make this stick.
Your employer lays off everyone over a certain age
If everyone in the last round of layoffs was age 40 and up, you have a good age discrimination lawsuit on your hands. Harder to prove are situations with younger employees in the mix, which is something companies do to hide age discrimination. Rubin says companies are required to disclose the ages of everyone included in layoffs, and if the majority are over 40, that information can bolster your age discrimination claim.
Your job title disappears
You might get laid off if your company says it no longer needs your role, but if a new younger person takes on your old tasks under a new job title, that’s grounds for age discrimination.
What to do if you’re being discriminated against because of your age—and you’re over 40
Age discrimination, like other forms of discrimination, is challenging to prove. Rubin says the easiest cases are the ones that show clear job turnover of an older employee to a younger one. “Ideally as an employee trying to prove a discrimination case, you want to be able to show that you replaced by a younger person,” she says. “When I say younger, I mean it’s a person who, under federal law, is under 40.” If you’re 50 and you’re replaced with someone younger who is still in the protected class, Rubin says they likely need to be seven or eight years younger for the case to hold. It’s unlikely, for instance, that a case between a 52-year-old and a 48-year-old will carry weight.
You also want to have witnesses. “Just like with sexual harassment, when there are not witnesses, it’s difficult to prove,” Rubin says. “If nobody else heard that comment, it’s the employee’s word against the supervisor’s word. And who is more credible?”
To figure out whether you have a viable case, Rubin recommends scheduling a free or low-fee consultation or strategy session with an employment attorney rather than fighting the system yourself. That person can help you envision the roadmap for how your case might be argued. “You can do it yourself, but I will say, when you get an attorney involved, you often get higher traction,” Rubin says.
Good steps to take to guard yourself against age discrimination include:
Knowing your rights
As we said, workers age 40 and up are protected by ADEA, and workers under the age of 40 are not. ADEA specifically protects employees from harassment and from any employment policies that, specifically, have a negative impact on employees 40 or older.
Removing proof of age
ADEA cannot keep employers from asking your age or your graduation date; that’s still legal. But you can do things to avoid that conversation: Limit your resume to one or two pages by deleting job experience that’s more than 15 years old, and proactively remove dates from your resume and LinkedIn profile.
Keeping a record
When you start to think you’re experiencing discrimination, keep a careful record of what’s happening, including emails and written descriptions of meetings you’ve had where discrimination occurred. Be sure to keep track of who was in those meetings to bolster your case.
Think you’ve been discriminated against? File a charge with the EEOC, or work with a lawyer to file a lawsuit. If you’re worried about money, consider using your company’s grievance system to air your concerns.
What to do if you’re being discriminated against because of your age—and you’re under 40
Unfortunately, people who are younger than 40 are not protected under ADEA, though some states have laws that expand those rights. Check, first, your local protections, but regardless, be prepared to advocate for yourself.
Author, speaker, and podcast host Lindsey Pollak is a multigenerational workplace expert. She’s spent her career helping generations work better together—and a large part of that has been focused on millennials growing in the workforce. Pollak says, without protections in place, to follow these three steps:
Make sure you’re not setting yourself up with phrases like, “I don’t really know I’m just a millennial. You’re older than I am.” That’s an easy way to undermine your talents.
Focus on the task at hand. If the work and mission of your organization still serve your career goals, then keep that as a guiding light through jokes and jabs.
Talk to someone. Report discrimination when it happens. “That’s why HR and employee resource groups exist,” Pollak says. “It requires a lot of bravery to do that. But that’s how change happens. When you speak up, you say, ‘I do know what I’m talking about. My opinion is warranted here.’”
Why age discrimination happens at work & what companies and coworkers can do about it
Pollak says stereotypes at work are huge contributors to age discrimination. “A lot of those stereotypes around age are not fair and not inclusive and ultimately harmful,” Pollak says. “So, I think letting go of the old-fashioned stereotypes of who should do what job when should really be rethought in a positive way.”
She also says companies and hiring managers seeking “culture fit” can sometimes warp the meaning of the term. “Sometimes the word ‘fit’ is code for ‘somebody who looks like me,’” she says. “So we fit together because we look alike or we have the same experience or we’re in the same age range. We often, but not always, tend to hire people who are similar to who we are—in age, in race, in gender, in background, in experience, in socioeconomic class, even in region of the country.” This practice, even if done unconsciously, keeps teams from diversifying and stereotypes from being struck down.
What companies can do
Pollak says efforts such as blind hiring—wherein job applicants’ names, schools attended, appearance, abilities or disabilities, and other identifying factors are hidden—help to erode the culture-fit problem. But what of fostering an environment that values contributors of all ages?
Age inclusivity, Pollak says, can grow through cross-generational mentoring, employee resource groups, volunteer activities, and political activities—anything that helps teams form more personal, authentic connections or unite over a shared goal. “Sometimes when you align people around a mission or a cause, age takes a backseat to belief,” Pollak says. “I think that’s really powerful. I think the way a company can be more age inclusive is by aligning employees over mission and purpose.”
What managers and individuals can do
Networkers matter. Period. Pollak says everyone, but especially hiring managers, should broaden the age range in their network. “When we have people lean on their network, it tends to be people who are the same race or age, their gender,” Pollak says. “Not entirely, but those are the trends. So one of the small but really powerful changes we can all make is to have a more age-diverse network.”
A good way to judge whether that’s a problem for you, your team, or your company is to look around. “I think awareness is the first step,” Pollak says. “Taking a look at your network, taking a look at your team, and looking at how diverse it is. Taking an honest assessment of who’s around you. Looking at the statistics of your organization.” Then do the work to change those numbers.
Being more inclusive when you have a meeting. When you’re hiring, do you have candidates of different ages? It takes practice to make sure age is diverse in any and all instances.”
4 ways ways to fight age discrimination at work
Be mindful of what you say—If it’s around you all the time, it’s easy to unintentionally contribute to a culture of age discrimination. Start paying attention to how you might be making an older coworker feel uncomfortable in the office. Pollak says phrases like “OK, Boomer,” for instance, are generational shaming and have no place at work: “OK, Boomer and a lot of the stereotypes about millennials wanting trophies for participation are shaming, and I think they’re just as harmful as other kinds of discrimination.”
Diversify your network—Whether you’re actively hiring or you’re just trying to expand your lunch crew, it’s always a good idea to open up your network to people of different ages and backgrounds. Seek diversity in age to iron out any internalized bias against other generations.
Make meetings more inclusive—Pollak says meetings should be representative of all backgrounds and ages. Ask yourself: “Do you have people in this meeting of all ages and ethnicities? When you’re putting together a committee of something important or launching a new product or hosting an event, do you have people of all ages represented?”
Speak up—We tend to laugh off jokes about age, but they’re still harmful. Pollak suggests responding with direct phrases like “You know, it’s not okay to make jokes about age.” Then move on. If the pattern continues, talk to HR. This could be an opportunity for your team or company to do diversity training, which, in the end, helps everyone.
About our sources
Alix R. Rubin, Esq. is the founder of Alix Rubin Employment Law. Prior to founding her firm, Rubin was a litigation associate at two major New Jersey firms and a partner at the New Jersey office of a small New York firm. She has a J.D. degree from the University of Pennsylvania Law School and is admitted to the bar in New Jersey, New York, and Pennsylvania. She also serves as an investigator at Verita LLC, where she conducts internal workplace investigations of employee misconduct.
Lindsey Pollak is a New York Times bestselling author, keynote speaker, and the leading authority on millennials and the multigenerational workplace. Her speaking audiences have included more than 250 corporations, law firms, conferences and universities. Her advice and opinions have appeared in media outlets including The Today Show, The New York Times, The Wall Street Journal, CNN and NPR among many others.