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Despite laws intended to prevent it, age discrimination ‘alive and well’ in 2019

Although over fifty (“50”) years has passed since the establishment of the Age Discrimination in Employment Act (ADEA), age discrimination still occurs in the workplace and in hiring practices, according to the American Association of Retired Persons (AARP), Equal Employment Opportunity Commission (EEOC) and numerous studies.

“Age discrimination is alive and well in the digital age, despite 50 years of laws intended to protect older Americans’ right to work. In fact, it’s thriving, with 20,857 such complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC) in 2016 alone, AARP states on its website.

At a meeting held in recognition of the 50th anniversary of the ADEA in 2017, officials told the

EEOC that “[p]ersistent age discrimination and stereotypes about older workers continue to channel older workers out of the workforce, limiting further economic growth. With so many more people working and living longer, we can’t afford to allow age discrimination to waste the knowledge, skills, and talent of older workers,” according to the EEOC.

A recent study that looked at more than 40,000 job applicant profiles found statistical evidence of age discrimination in hiring—discrimination against both women and men. Older applicants—those 64 to 66 years of age—experience more age discrimination than middle-age applicants ages 49 to 51, while women—especially older women, even those of middle age—experience more age discrimination in hiring than men do, the study indicated.

The ADEA, established in 1967, forbids age discrimination against people who are age 40 or older, according to the EEOC

Specifically, according to the ADEA, the following is prohibited:

  • discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment;
  • harassment of a person because of his or her age, including, for example, offensive or derogatory remarks about a person’s age; and
  • employment policies or practices that apply to everyone, regardless of age, that would be illegal if they pose a negative impact to applicants or employees age 40 or older and are not based on a reasonable factor other than age.

According to AARP, the ADEA applies to:

  • employers with at least 20 employees;
  • employment agencies;
  • the federal government;
  • state and local government (though remedies are often limited); and
  • labor organizations with at least 25 members.

Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. In addition, the harasser can be the victim’s supervisor, a supervisor in another department, a co-worker, or someone who may not necessarily be an employee of the employer, such as a client or customer, according to the EEOC.

Many states have additional age discrimination laws, some of which apply to employers with fewer than 20 employees. In Texas, for example, state age discrimination laws apply to employers with 15 or more employees. In New York State, the number is four or more employees.

Employers should ensure that they have updated policies and procedures in place to prevent age discrimination in the workplace and in their hiring practices. According to AARP, employers should be aware that they cannot:

  • discuss age or specify that a particular age is preferred in job ads and recruiting materials;
  • establish age limits for training programs;
  • retaliate against employees if they file age discrimination claims or assist with age discrimination investigations; or
  • force an employee to retire at a certain age (except for certain exceptions).

It should also be noted that employers should not ask employees questions about race, sex, disability, religion and national origin, among others, rights covered under the Title VII (civil rights), Americans with Disabilities Act, Equal Pay Act and GINA (Genetic Nondiscrimination Act).

Employers should seek a labor and employment attorney to review their current workplace and hiring practices to ensure that they comply with all federal and state laws regarding age as well as all other forms of discrimination.


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