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Age Discrimination In The Workplace: What Is It & How Can Employers Prevent It?

By Mark Sottile, Esq.

The Age Discrimination in Employment Act (ADEA) makes it unlawful for employers to make employment-related decisions like hiring, firing and promoting, based on an employee’s age. Yet, based on the jurisdiction or even the judge, there are varying interpretations of what constitutes age discrimination and/or retaliation. Thus, employers need to carefully assess their obligations under the ADEA, evaluating each employment decision and the surrounding factors with special care and a close eye towards the disciplinary record of the employee (potential plaintiff).

What Constitutes Age Discrimination in the Workplace?

The ADEA applies to private employers with 20 or more employees, employment agencies, labor organizations, and government entities. Under the ADEA, these employers are prohibited from engaging in discriminatory practices including:

  • Discriminating against employees or job candidates based on their age;
  • Limiting, segregating, or classifying employees based on age if doing so adversely affects older employees’ employment opportunities or employment status; and,
  • Retaliating against employees who oppose employment practices that discriminate based on age.

Surprisingly to some, the ADEA only protects employees who are 40 or older. In other words, if you are under 40, you do not have a claim, even if you are treated less favorably than someone who is significantly younger.

What Can Employers Do To Prevent ADEA Violations?

Given these considerations (and the risks of violating the ADEA—which include civil liability, fines, and other penalties), what can – and should – employers do in order to prevent ADEA violations? Among other measures, the U.S. Equal Opportunity Commission (EEOC) recommends:

  • Assessing the company’s culture, practices, and policies for possible outdated assumptions about older workers;
  • Examining the company’s recruitment practices for possible biases toward younger candidates;
  • Incorporating age into the company’s diversity and inclusion efforts; and,
  • Fostering a multigenerational culture that recognizes ability regardless of age and rejects age-related stereotypes.

Additional steps that employers can take to mitigate the risk of age discrimination in the workplace include:

  • Reviewing and updating job applications and job descriptions;
  • Conducting company-wide discrimination and diversity training programs;
  • Training supervisory and managerial staff regarding ADEA compliance;
  • Engaging with employees to help foster the EEOC’s recommended multigenerational culture; and
  • Adopting policies and procedures that prohibit age-based decision-making.