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Ageism in the Workplace – Persistent and Pernicious

On February 14, 2019, bipartisan teams of Congress introduced the Protecting Older Workers Against Discrimination Act (POWADA). The bill would reverse a 2009 U.S. Supreme Court decision by amending the Age Discrimination in Employment Act (ADEA) to allow for mixed-motive discrimination claims.1 The 2009 ruling required a higher burden of proof on workers who allege age discrimination than on those who allege discrimination on race, religion or gender.2 This meant that employees have to prove that age was the determining reason for their treatment, such as a dismissal or denial of a promotion, as opposed to prior practice when employers had to provide a legitimate reason for laying off or demoting an older worker.3

More than 50 years after the Age Discrimination in Employment Act was passed in 1967,4 age discrimination is still one of the most common forms of employment discrimination. According to a recent report from the Equal Employment Opportunity Commission (EEOC) on the state of age discrimination in the workplace (ADEA at 50), the number of age discrimination claims filed with the EEOC increased 47% since 1999.5 The EEOC received 20,857 complaints of age discrimination in 2016 - more than 20% of all EEOC discrimination claims.6 Age discrimination makes up more than one in five of the discrimination charges received by the EEOC.7 

Given the workplace’s changing demographics with a growing number of older workers in the workforce, age discrimination is expected to increase. Many Boomers (and Millennials) hope to work beyond age 65; a May 2016 Gallup poll found that 31% of all working adults intend to remain in the workforce beyond age 68.8 Generation X is already in their early 50s and as noted in the EEOC ADEA at 50 report, “looking for work in your 50s is different than looking for work in your 40s.”9 Furthermore, age discrimination affects minorities and women to a greater degree.10

Age discrimination is often difficult to prove and present in the workplace in many forms, including age-related remarks, comments, jokes, not hiring or promoting qualified older workers, layoffs that disproportionately affect older workers, and involuntary retirement. Age discrimination remains a common and often tolerated practice.

Recent Case Law

In January 2019, the 7th Circuit Court decided that there was no age discrimination in hiring when a job post required that applicants have no more than seven years of experience, where the plaintiff applicant had more than seven years of experience and was not hired. This type of plaintiff claim alleges that general, broad practices can have the effect of treating people differently even if there is no intent to do so, termed “disparate impact” discrimination. The Court held that the disparate impact language of the ADEA does not extend to outside job applicants.11 However, even with the outcome of this case, U.S. employers cannot intentionally discriminate against an outside job applicant because of his or her age ('disparate treatment’ discrimination).12

On the other hand, the risks employers face when an age discrimination lawsuit is successful are significant. Seasons 52, a Florida based restaurant chain, settled a hiring discrimination lawsuit in the amount of $2.85 million; the EEOC found that applicants over 40 years old had been denied jobs in violation of the ADEA.13

The attention generated by court cases, even those that negatively impact older workers, will position plaintiffs to be more aware of practices that could affect older workers.14

What Can Employers Do?

As we await the results of the proposed POWADA legislation, EEOC and state law remedies remain in place for age discrimination claims. Employers should review hiring and employment practices to ensure full compliance with age discrimination laws.15 Employers should also consider the following:

  • Create a culture where ageism is not tolerated, beginning with meaningful training for both managers and employees to increase their awareness of age discrimination.
  • Hire the best person for the job based on the position requirements, including education, experience, communications and other relevant skills.
  • Use age-neutral language in job postings – both internal and external. Words that indicate that older workers would be viewed or treated less favorably than other workers could create a legal risk. Instead of using words like “energetic” or “high-potential” use terms such as "entry-level" or "senior-level" when describing job openings.16
  • Do not use social media or search engines to find out applicants' ages, or ask questions that are subtly age related, such as favorite bands or gaming sites.
  • Have an age-diverse hiring panel that interviews and evaluates job candidates on the knowledge, skills and behaviors required for the job, and not on subjective factors that can lead to implicit bias, such as asking interviewees how they would feel about reporting to a younger supervisor, or emphasizing a goal of hiring a young, energetic workforce.
  • Include older workers in diversity and affirmative action plans.
  • Make sure your anti-harassment policy covers ageism.17
  • Ensure that a complaint process is in place to handle age discrimination complaints and include specifics such as who will handle complaints - human resources or compliance - and the form in which complaints will be taken. Consider an employee complaint hotline to augment the avenues available to submit complaints.
  • Promptly investigate alleged discrimination of all forms, including age discrimination, using trained, impartial investigators.
  • Don’t exclude older workers from training or other career advancement programs.18
  • Base restructuring decisions on objective considerations that don't discriminate based on age. Age should not be a factor.19
  • Ensure that severance and release documents are ADEA compliant.20
  • When considering flexible work arrangements for any employee, consider entry-level positions, part-time positions and phased retirement.
  • Be aware that it is allowable to differentiate on the basis of age if age is a genuine work-related qualification, which is clearly documented, such as for airline pilots for safety reasons (a bona fide occupational qualification under the ADEA).21 
Age discrimination persists even 50 years after the ADEA was first signed into law. At some point, all workers will be exposed to age discrimination. With the increase in older workers in the workforce, age discrimination protection is more important than ever.

Kenneth Terrell, Legislation Introduced to Better Protect Older Workers, Feb. 14, 2019,,
2 Gross v. FBI Financial Services, Inc. 557 U.S. 167 (2009). A plaintiff bringing an ADEA claim must prove by a preponderance of evidence that age was the but for cause of the challenged adverse action. The burden of persuasion does not shift to the employer as it does in Title VII mixed motive cases, even if the plaintiff has offered evidence of age discrimination,
3 Victoria A. Lipnic, The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA), June 2018,,
4 See Note 1 above.
5 Kate Rockwood, Hiring in the Age of Ageism, Jan. 22, 2018,,
6 Id.
7 Id.
8 Id.
9 See Note 3 above.
10 Kenneth Terrell, Age Bias Complaints Rise Among Women and Minorities, June 28, 2018,,, complaints from minority workers over age 65 have nearly doubled.
11 Eric B. Meyer, Appellate Court Rules that Age Discrimination Against Certain Job Applicants is Okay – Sort of, Feb. 5, 2019,,
12 Allen Smith, J.D., 7thCircuit Curtails Applicants’ Age-Discrimination Lawsuits, Feb. 4, 2019,,
13 Roy Maurer, Seasons 52 Settles $2.85M Hiring Discrimination Lawsuit, May 21, 2018,,
14 See 12 above. Also, Allen Smith, J.D., ADEA’s Reach Expanded to Job Applicants, May 10, 2018,,
15 Kathy Gurchiek, Steering Clear of Ageism in the Workplace: A Q&A with Patricia J. Barnes, J.D., March 5, 2018,,
16 Id.
17 Id.
18 Age Discrimination Supervisor Briefing, March 1, 2019,,
19 See Note 15, above. 
20 Dana Wilkie, 50 Years After Age Discrimination Became Illegal, It Persists, Jan. 22, 2019,,   
21 Beth P. Zoller, HR Support on Avoiding Age Discrimination Issues, Mar. 1, 2019,,