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Proving Age Discrimination Is Difficult

Randy M. Lish May 24, 2017

As baby boomers continue to work past retirement age, age discrimination lawsuits are becoming more common. Two out of three workers between ages 45 and 74 say they have seen or experienced age discrimination, according to AARP. However, experiencing it and proving it are two different things.

The federal Age Discrimination in Employment Act (ADEA) forbids employers with 20 or more employees to discriminate against people who are age 40 or older. The law prohibits an employer from discriminating in hiring, firing, wages, job assignments, promotions, or any other aspect of employment. It is also illegal to harass employees based on their age. (Your state may have its own laws regarding age discrimination as well.)

If you believe you have been the victim of discrimination, the first step is filing a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the claim and determine if the evidence shows that discrimination has occurred. If the case isn’t settled, the EEOC can sue the employer who discriminated or it can give the employee or job applicant the right to sue the employer.

Providing evidence of discrimination is the difficult part. Direct evidence of discrimination–for example your boss telling you he is firing you because you are too old—is very rare. Instead, the signs are usually more subtle. Evidence of discrimination could include the following:

  • Your employer makes frequent comments about your age

  • Your performance reviews start going down as you get older

  • You are disciplined for behavior that younger employees are not disciplined for

  • Younger employees are getting hired and promoted more frequently than older employees

  • You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments

The fact that your employer replaced you with a younger worker, or an employer hired a younger applicant, isn’t enough to prove discrimination. You need to show a pattern of behavior. The U.S. Supreme Court didn’t help matters by ruling in 2009 that plaintiffs must meet a higher standard of proof for age discrimination than for other types of discrimination.

Suing for discrimination can take a lot of time, effort, and money. You need to decide if it is worth it. Rather than going straight to a lawsuit, it may be possible to use evidence of discrimination to negotiate a better deal with your employer.

If you feel you may be the victim of age discrimination, it is a good idea to keep a log of any comments or actions that appear discriminatory. You should also contact an attorney who specializes in employment law and have him or her review any documents you receive from your employer before you sign them.

For more information on what is covered under the ADEA, click here.

For FindLaw’s coverage of age discrimination, click here.