Age Discrimination: When Employment Decisions Become Illegal

Under federal law, specifically the Age Discrimination in Employment Act (ADEA), protection is reserved exclusively for workers who are forty years of age or older. It does not protect younger workers from being discriminated against in favor of older ones at the federal level, though some state laws may differ. The core objective is to prevent the use of arbitrary age limits that ignore an individual's actual ability to perform.

An employer has the legal right to terminate or demote an employee for poor performance, regardless of their age. The conflict arises when an adverse employment action is disguised as a performance issue but is actually rooted in stereotypes about an older worker's technical skills, energy levels, or long term cost to the company. Distinguishing between a legitimate business reason and a pretext for bias is the primary focus of any legal investigation.

The ADEA applies to private employers with twenty or more employees, as well as state and local governments and labor organizations. It protects both current employees and job applicants. This means that a company cannot refuse to hire someone simply because they are closer to retirement age, provided they are qualified for the position.

Many states have enacted their own employment discrimination laws that offer broader protections than the ADEA. Some states apply these rules to smaller businesses with fewer than twenty employees. Others may even allow for claims by younger workers if they are treated unfavorably because of their age. Navigating the intersection of federal and state rules is a critical component of any age discrimination strategy.

Illegal bias can occur at any stage of the employment lifecycle.

• Hiring: 

Using digital recruitment tools that specifically target younger demographics or using language in job descriptions like "digital native" or "recent graduate" to exclude older applicants.

• Promotions: 

Denying an older worker a promotion because the employer believes they have a "shorter runway" or less time to give to the company before retirement.

• Termination: 

Choosing to terminate an older employee during a layoff while retaining a less experienced younger employee who performs the same role.

Reductions in force (RIF) are a common area for age discrimination disputes. While a company has the right to downsize, they cannot use the restructuring as a tool to "refresh" the workforce by targeting older, higher paid employees. If a layoff disproportionately impacts the protected class of workers over forty, it may create employer liability under a theory of disparate impact.

• Direct Evidence: 

This is the "smoking gun," such as a manager stating that the company needs "younger blood." Such evidence is rare in the modern corporate environment.

• Circumstantial Evidence: 

Most cases rely on a pattern of facts that suggest discrimination. This includes showing that similarly situated younger employees were treated more favorably or that the employer's stated reason for a termination is inconsistent with the facts.

To succeed in an age discrimination claim, an employee generally must show that age was a determining or motivating factor in an adverse employment action.

Most courts use a three step process:

• The Prima Facie Case: 

The employee shows they are over forty, were performing their job satisfactorily, suffered an adverse action, and were replaced by someone substantially younger.

• The Employer’s Rebuttal: 

The employer must provide a legitimate business reason for the decision.

• The Pretext Showing: 

The employee must then prove that the employer's reason is a lie or a cover up for actual bias.

The most common defense is that the decision was based on a "Reasonable Factor Other than Age" (RFOA). This could include a decline in company revenue, a shift in the skills required for a role, or documented performance failures by the employee. If the employer can prove that the decision would have been made even if the employee were younger, the age discrimination claim will likely fail.

In very limited circumstances, an employer may argue that being a certain age is a "Bona Fide Occupational Qualification" (BFOQ) reasonably necessary for the normal operation of the business. This is a very high bar to clear and is typically restricted to roles where public safety is a primary concern, such as commercial airline pilots or specific public safety officers.

• Back Pay: 

Compensation for the wages and benefits the employee lost from the time of the adverse action until the judgment.

• Reinstatement: 

A court order requiring the employer to give the employee their old job back. In many cases, because the relationship is too damaged, courts may award "front pay" instead, which covers future lost earnings.

Under the ADEA, if an employee can prove that the violation was "willful," meaning the employer knew or showed reckless disregard for whether its conduct was prohibited, the court can award liquidated damages. This effectively doubles the back pay award. However, unlike some other forms of discrimination, the ADEA does not allow for the recovery of pain and suffering or punitive damages, though these may be available under certain state laws.

Before an employee can file a lawsuit under the ADEA, they must typically file a charge with the Equal Employment Opportunity Commission (EEOC). This process has strict deadlines, often as short as 180 or 300 days from the date of the discrimination. Failing to file an EEOC complaint on time can permanently bar an employee from seeking relief in court.

SJKP LLP provides the analytical stewardship needed to manage these timelines. We move beyond the surface of the conflict to perform a forensic audit of company emails, performance reviews, and hiring data. Our focus is on providing clinical clarity, ensuring that the burden of proof is met and that the employee's rights are protected against procedural failures.