How To Spot Age Discrimination In The Workplace
On November 4, 2022, thousands of employees at Twitter were dismayed to log into their company email only to learn that their jobs had suddenly been eliminated.
Just days after purchasing the popular social media company, billionaire and new CEO Elon Musk caused an uproar by initiating major layoffs that eliminated over half of Twitter’s workforce with little warning.
In the wake of the announcement, some employees moved quickly from shock to anger, claiming that the layoffs weren’t just ill-timed and unfair but also illegally discriminatory against older workers.
In the past couple months, Twitter — now X Corp. — has been facing several lawsuits from numerous employees over 50 who claim that Musk’s downsizing was a form of unlawful age discrimination.
In this blog post, we’ll explain how the law defines workplace age discrimination, break down the lawsuits Twitter/X is facing, and describe when to contact an employment attorney about potential discrimination.
If you have questions, please contact our employment attorneys online or call (866) 442-6755.
What Counts As Age Discrimination In The U.S.?
In the U.S., workplace anti-discrimination law considers a worker’s age a protected characteristic that can’t legally be used by companies in employment decisions: e.g. recruitment, hiring or firing, or awarding promotions and compensation.
However, unlike other protected classes — like gender, race, disability, or religion — age-related protections aren’t offered to all employees.
When it comes to age discrimination, the law only intervenes in situations when employees aged 40 and older are facing differential treatment in the workplace.
The Age Discrimination in Employment Act (ADEA), the main federal law governing workplace age discrimination, is explicit about making its protections exclusive to workers who are 40+.
The ban on employers using age to make decisions about hiring, layoffs, advancement opportunities, pay, etc. — none of it applies to workers who are under 40 years of age.
In fact, the ADEA even allows employers to preference workers over age 40 in a way that would be illegal if applied to someone younger. For example, the ADEA makes it unlawful for employment ads to include age preferences or specifications aimed at younger workers: e.g., “seeking applicants age 25 to 35” or “recent college graduates.”
But job notices can express a preference for workers “over age 50” or who are “retirees.” (The ADEA also allows federal agencies to show favoritism to 40+ workers based on age — even at the expense of other, relatively younger workers who are still over 40.)
When it comes to an employer who’s disfavoring older workers, there are two main ways of identifying and describing the illegal discrimination:
- Disparate treatment: this is a policy that intentionally treats an employee or group of employees unfavorably specifically because of their age. This type is often more obvious to spot: for example, a restaurant owner engages in disparate treatment if he cuts all employees who are over age 45 down to half-time hours, but no one else.
- Disparate impact: this kind of age discrimination looks more subtle — it can even be unintentional. This happens when an employer institutes a policy that appears neutral (i.e. not targeted only at 40+ employees) but ends up negatively affecting older workers more than younger workers. For instance, if a restaurant owner institutes a new policy saying employees who want to work as waitstaff can’t have gray hair. This policy doesn’t strictly involve age, but since older workers are often more likely to have gray hair, it could disproportionately impact them, making it more difficult for older waitstaff to get shifts and hours compared to younger ones.
When Are Layoffs Considered Illegal Age Discrimination?
John Zeman was one of the thousands of Twitter employees laid off on November 4, 2022. Not long after, the then-63 year old filed a class-action lawsuit against X Corp. (formerly Twitter), alleging that Musk disproportionately targeted older employees in the mass job cuts.
His proof? Zeman pointed to the data about the layoffs that the company shared with employees in November 2022.
Before downsizing, Twitter’s U.S. employees included about 248 individuals aged 50 or older and 4,716 workers under the age of 50. Sixty percent (149) of older workers were terminated in the layoffs — meanwhile, only around 54% (2,537) of workers under 50 lost their jobs.
The gap in retention gets even higher when it comes to employees who were aged 60 and older: 73% of Twitter’s 60+ staff members were eliminated when Musk took over.
According to Zeman, the decision-making behind the layoffs was chaotic and rushed. The decisions were largely made by a small group of managers, some of whom came directly from Musk’s other company, Tesla.
Employees were cut seemingly without regard for their past performance, experience, and professional qualifications, even though Musk himself closely supervised the downsizing process.
Zeman says that it’s no accident that workers over 50 were laid off at a greater proportion during the takeover. He pointed to statements that he claims show Musk’s track record of discrimination against older people.
He cited an interview the billionaire gave in March 2022, in which he made negative comments about the impact of older leaders on society.
These beliefs, Zeman argued, combined with the demographic data from the layoffs, showed that Musk’s restructuring intentionally targeted older workers — exactly the kind of “disparate treatment” that the ADEA prohibits.
To convince a court that job cuts are intentionally motivated by age, things are a little more challenging, though. The legal standard required to prove that an employer’s layoffs are a form of “disparate treatment” (i.e. targeted discrimination) is quite high.
It’s not enough for the aggrieved employees to show that age was a contributing factor in some of the firings. Instead, they must be able to show that age was the only factor in their termination: in legal terms, that they wouldn’t have been let go at all “but for” their advanced ages.
In Zeman’s case, a federal judge agreed that the age discrimination claim had some merit. But she disagreed that there was enough evidence to prove the layoffs were motivated by intentional age discrimination.
Instead, for the class action suit to move forward, it would be better to focus on the disparate impact of the criteria used to justify the layoffs.
This way, Musk and X Corp. could still be held responsible for the disproportionate consequences that the job cuts had on workers above 50, even if it wasn’t expressly intentional.
A company can try to shoot down claims of disparate impact by pointing to other, non-age-related factors that motivated job cuts. But a court will still take into account how these alternative factors are implemented.
For instance, if Musk allowed managers to use vague, subjective criteria (factors not closely related to concrete business objectives) and didn’t make an effort to assess the potentially discriminatory outcomes that these criteria could have on older workers, then the company could still be found to have violated the ADEA’s rules against age discrimination.
What Should I Do If I Experience Age Discrimination At Work?
Layoffs are one of the most obvious times when employee age discrimination occurs — whether it’s intentional.
But discrimination against older workers can happen while you’re still working. Older workers should keep an eye out for certain signs that could indicate a discriminatory environment:
- Sudden changes in job performance reviews
- Forcing older employees into retirement
- Trainings or other policies directed only at older employees
- Termination of employees who have been at the company longest
While none of these alone is an example of age discrimination, they could be a warning that an employer is treating older workers differently than the rest of the staff.
When to Get in Contact With an Employment Lawyer
If you experience any of these situations or are concerned about potential discrimination, the best course of action is to contact an employment lawyer.
An experienced attorney can listen to your case and evaluate if any anti-discrimination laws have been broken. If your rights have been violated, a lawyer can also advise you on the best course of action for getting restitution.
Beyond the federal ADEA, individual states also have laws banning age discrimination in the workplace, some of which might be better suited to your case.
For instance, California’s age discrimination regulations cover a larger group of employers than the ADEA does, and it uses a less strict standard for identifying discriminatory action — meaning it’s easier for employees to win lawsuits and get recovery.
In New York state, age discrimination protections even extend to workers who are younger than 40 years old.
For the past two decades, Ottinger Employment Lawyers has been helping employees facing discrimination, harassment, and unfair firing get justice.
If you work in California or New York and are concerned that you’ve been the target of discrimination, don’t wait: contact our office today to speak to an experienced attorney about your case.
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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