Liz Christianson
The immortal words of Sgt Murtaugh from the Lethal Weapon franchise ring through the heads of many job seekers over a certain age. Age discrimination is illegal in the workplace; however, companies still do this to employees and job candidates. Do those laws even apply to individuals who have not yet been hired? In this article, Jobhunter examines ageism in the workplace and the job hunt and explores strategies that employers and candidates can employ to combat this issue.
What constitutes Age Discrimination?
It’s exactly what it sounds like. Treating someone differently, usually less favorably than others, due to their age. What it looks like in the workplace is refusing to hire, promote, or train someone due to their age. It can also include termination due to age. While it can happen to a younger person, such as refusing to hire someone right out of high school or college and giving the “not enough experience” excuse, Age Discrimination in the workplace usually affects older workers. Often, that discrimination shows up in the form of jokes about the person’s age or life experience. Assumptions are sometimes made that because an employee is older, they lack the advanced computer skills their younger coworkers have.
Age discrimination is, in fact, illegal. The Age Discrimination in Employment Act (ADEA) was passed in 1967 and forbids discrimination against people who are 40 years old or older. It prohibits companies with 20 or more employees from discrimination in any act of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and any other condition of employment. While this federal law only prohibits discrimination against those age 40 or older, some individual states also have laws in place to protect younger people from age discrimination. The occasional age-related quip in the workplace is not necessarily illegal. It only becomes actionable when the comments are so frequent and pointed that they create a hostile work environment.
Filing a Complaint
A person who feels they have been a victim of workplace discrimination can file a charge with the Equal Employment Opportunity Commission (EEOC). This applies to all forms of discrimination, including age-related. One must file a Charge of Discrimination with the EEOC before they can file a job discrimination lawsuit against their employer. There’s more information on filing a charge here. According to the EEOC, Texas had the highest number of charges of age-related discrimination for Fiscal Year 2024, with 1860 claims. In total, the EEOC received over 16,000 charges of age-related discrimination in the US for FY 2024.
To prove age discrimination in the workplace, an employee needs to prove that they are over the age of 40, qualified for the position, experienced an adverse action by the employer, and that the employee’s age was a determining factor in the employer’s decision. The adverse action by the employer means the employee was passed over for promotion or a raise, or was demoted or given a significant change in job duties. Obtaining that proof may be a bit more difficult, but direct evidence would be explicit statements or comments by a supervisor that indicate discriminatory intent. Any evidence that indicates disparate treatment of older employees, such as policies or procedures that appear neutral but have a disproportionately negative impact on older workers, can help prove that a culture of bias exists. When gathering evidence, be sure to include any emails, written policies, and any other documentation of discriminatory practices. Witness testimony is also important.
If you feel that you’ve been discriminated against, Jobhunter suggests reaching out to your local EEOC office. They can help you to file a charge through the EEOC, which is the first step in the process. From there, consult an attorney who specializes in workplace discrimination to see if you have a claim.
Discrimination in the Job Hunt
Proving discrimination as a candidate is similar to that of an employee. You need to prove that age was the deciding factor in the hiring process. It might be harder to prove you were passed over for a younger candidate with less experience because most job seekers aren’t in a position to find out who the job went to. These days, most candidates who get to the interview phase are ‘ghosted’ if they don’t get a job offer. You may be able to prove discrimination if, during the interview, the hiring manager makes obvious comments or subtle digs about a candidate’s age. Some examples of ageist comments in an interview might be: “This is a fast-paced environment, and we’re looking for someone with high energy.” This implies older people can’t keep up with the work pace or the technology involved. Another example of an ageist comment in an interview is to ask the candidate when they see themselves retiring. Some less subtle digs at a candidate’s age might be to ask why they’re looking for this type of job at this stage in their career.
In the interview stage, you may not have any legal recourse against the employer, but document the conversation anyway.
How Employers Can Prevent Age Discrimination
Since it is illegal to discriminate against workers based on age, there are things that companies can do to keep themselves out of legal hot water. Conducting an audit of their hiring practices to root out any biases is a good start. Companies need to look at how they’re advertising their open positions. What channels are they using to promote their company, and what’s the target demographic of each channel? Are they using any language in the job description that might be construed as discriminatory? For example, encouraging ‘recent college graduates’ to apply may seem like inclusion to younger workers who don’t have as much experience, but it could have the opposite effect, like discouraging older, more experienced workers from applying. Another area where companies can remove bias is in their online application form. If there’s a section that requires an applicant to put in their birthdate or the year they graduated, it should be removed. Overall, companies need to consider how they present their brand, what language they use to promote themselves and their open positions, and work to remove bias in the hiring process by adopting hiring practices that focus on skills-based assessments so that the focus is shifted from the chronological age of a candidate to their skills, experience, and qualifications.
You’re Not Too Old For This Sh*t
As we’ve suggested that companies remove birthdates and graduation dates from online applications, we also encourage candidates to remove those dates from their resumes. Other steps you can take to help you in your job hunt are to tweak your resume as needed to match your skills with the keywords listed in the job description. (See our post about getting your resume past the ATS.) Leveraging your network is helpful when looking for a job. Sometimes, it really does come down to who you know. It’s always a good idea to keep your skills fresh and learn new things to keep up with trends in your industry. It demonstrates your adaptability and willingness to learn.
In Summary
It is illegal to discriminate against employees and job candidates based on age. Laws to protect workers over the age of 40 from discrimination have been in effect since 1967. As the workforce gets older, the median age of the civilian worker in the US is 42 years old. The workforce will continue to get older, and the job market is getting tougher. Older workers may face discrimination based on their age as they enter or re-enter the workforce in the face of a tough economy. While nothing in this article is meant to be construed as legal advice, if you feel you have been discriminated against based on age or other factors, you can contact the EEOC to file a charge and/or consult an attorney who specializes in discrimination cases.
Good hunting.