How to Prove Age Discrimination at Work

In our youth-obsessed culture, age discrimination at work remains a persistent problem. The first question our clients often ask is, what is the age for an age discrimination claim?

Surprisingly, the answer is only 40 years old.

To prevent workplace age discrimination and promote the employment of older workers, Congress enacted the federal Age Discrimination in Employment Act (ADEA) in 1967.

California later followed suit, adding age discrimination to the Fair Employment and Housing Act (FEHA).

Sadly, in a report detailing the status of age discrimination claims 50 years after the ADEA’s passage, the Equal Employment Opportunity Commission (EEOC) reported that “6 out of 10 older workers have seen or experienced age discrimination in the workplace and 90 percent of those say it is common.” 

Older employees who are experiencing age discrimination have options though. An employment attorney can help you fight for the benefits and respect you have earned.

What Constitutes Age Discrimination at Work?

Ageism rears its ugly head in many employment practices. To combat this, the ADEA and FEHA prohibit age discrimination from impacting:

• Hiring and promotion practices,
• Job advertisements,
• Compensation,
• Benefits or conditions,
• Training programs, and 
• Firings and layoffs. 

Both laws also ban retaliation and harassment.

The latter includes derogatory jokes and comments based on stereotypes that become so frequent they create a hostile work environment or result in an adverse employment decision. 

There are some exceptions. For instance, the ADEA allows police and fire departments to set age limits based on safety concerns.

And while the ADEA and FEHA apply to most employers, the FEHA does not cover businesses employing fewer than five employees and the ADEA’s limit is fewer than 20.

How to Prove Age Discrimination

When the time comes to file an administrative complaint or an age discrimination lawsuit, there are two primary methods of proving your case.

Disparate Treatment

Disparate treatment is intentional ageism against people 40 and older. It is the more obvious form of discrimination where someone is treating an applicant or employee less favorably because of their age.

An example of this would be laying off all employees over age 55.

The challenge of how to prove age discrimination in layoff decisions like this is that you must show that “but for” the employee’s age, the negative employment action would not have occurred.

In this example, the company might argue that it needed to cut costs, and it was these employees’ high salaries, not their ages, that justified the layoffs.

Disparate Impact

Age discrimination that has a disparate impact is more subtle and may even be unintentional. The employer’s actions appear neutral but negatively impact the over-40 protected class.

A pre-employment test that assesses reaction times might fall into this category. It seems neutral but has a disparate impact if it results in the company only hiring younger, faster people.

Unfortunately, the company can refute a disparate impact claim if it shows that it treated the older workers differently based on some other reasonable factor besides age.

In the previous example, that might include something like demonstrating that reaction time was important for employees working to inspect items on a conveyor belt.

How Do I Pursue My Claim?

The first step is filing an EEOC claim. Alternatively, you may file a complaint with the California Department of Fair Employment and Housing or request an immediate right to sue notice.

Our experienced employment attorneys can help you decide which path to take. 

If you do not resolve your issue administratively, your attorney will file an age discrimination complaint in court.

Why Should I Contact Ottinger Employment Lawyers?

Ottinger Employment Lawyers is a boutique employment firm. This means fighting for employees’ rights is all we do.

We are also known for taking communication very seriously, so you can rely on us to keep you informed of the status of your case. Contact us today to schedule a consultation.

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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