The Long, Hard Road of Fighting Age Bias in the Workplace

A wave of pandemic-related early retirements may be about to reverse itself. Instead of older Americans fleeing the labor force, more are expected to participate in it over the coming years. The Bureau of Labor Statistics expects nearly 40% of adults ages 65 to 69 and nearly 25% of people ages 70 to 74 will still be working by 2030, up from 33% and 19%, respectively, in 2020. Some of those workers will be returning from early retirement, continuing the prepandemic trend of Americans working past age 65.

But labor participation rates tell only part of the story. Many older Americans also face age bias in the workplace even though the Age Discrimination in Employment Act prohibits discriminating against workers 40 and older. More than 14,000 claims of age discrimination were filed with the Equal Employment Opportunity Commission in fiscal year 2020, and 78% of older workers reported seeing or experiencing age discrimination on the job, a 2021 AARP survey found.

Age discrimination benefits no one, including employers. The U.S. lost out on potentially $850 billion in economic growth in 2018 because of discrimination against older workers, says AARP. That figure could grow to $3.9 trillion by 2050. For older workers, discrimination is often devastating, but recognizing the signs and knowing your rights can be empowering. Although there are risks to fighting back and filing a complaint, "going quietly is generally not a good idea," says Tom Harrington, a principal at the Washington, D.C.-based Employment Law Group, which handles discrimination cases nationwide.

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An Insidious Problem

Age discrimination often takes the form of older workers who are unjustly fired, laid off or passed over for hiring and promotions. Age-based harassment is also prohibited. It can be a more subtle form of age discrimination and might consist of coworkers making "jokes" about a colleague's age or excluding an older employee from social events. "When you think of harassment, you may automatically go to sexual harassment," says Matthew Stegmeier, director of operations for Project WHEN, a nonprofit in Lorain, Ohio, that advocates against workplace harassment. "But it can also be these off-handed comments, even if made in fun."

Most lawsuits involve a worker who was unjustly terminated because getting fired from a job can have long-term effects on the individual's financial and career prospects, Harrington says. "When folks are pushed out because of their age, they may have trouble finding new employment," he says. "We see that in their job search efforts all the time."

Even older workers who weren't fired can have difficulty landing a job because of hiring managers who prefer younger applicants. Companies often prefer younger workers because their salaries are usually lower. Wanting to cut costs isn't illegal, Harrington says, but the employer must show that the decision was purely financial and had nothing to do with age.

Women are more likely to be discriminated against than men, says Patrick Button, an associate professor of economics at Tulane University in New Orleans. He conducted an experiment by sending resumes of two older workers, ages 50 and 65, and one for a younger applicant, age 30, to prospective employers. The resumes for older workers showcased similar, or sometimes more, experience and usually identical skills compared with the younger applicants, with just age and gender varying. His research found that interview offers decline twice as fast for women at age 65 as they do for men of the same age. "Some of the age stereotypes are sexist," Button says. "There are ageist ideas around how women age less gracefully than men do."

Proving age discrimination isn't easy because there is often little direct evidence of misconduct. Of the 205,000 age discrimination claims filed with the EEOC from 2010 to 2017, only 1% resulted in a finding of age discrimination, says Barbara Herzog, a career counselor and life coach in Washington, D.C.

Instead, there may be more indirect clues, such as coded language, including statements like the company has a "desire to bring in new blood" or "they are looking to reinvigorate our workforce," Harrington says. Those types of phrases hint at a desire for younger workers without saying so explicitly. "They are rarely saying, 'We want to get rid of older employees.'"

Avenues of Recourse

If you believe you are facing age-based harassment or discrimination, document the incidents in real time. Write down inappropriate comments along with who made the remarks and when. Note any patterns you see of older workers who were pushed out and younger workers who were hired instead. If you meet with anyone at the company to discuss your treatment, take good notes of the meeting and "memorialize that as quickly as you can for your own files," Harrington says.

Most employers who terminate a worker because of age do so under the guise of poor performance. If you receive a performance review that is unexpectedly negative and you believe it was motivated by ageism, find out your company's policies for filing a complaint and submit it to the appropriate person, usually someone in human resources. "That's advice we would consistently give to clients, whether it's an age or race discrimination claim, if only because that gives them additional protections," Harrington says.

Filing a complaint with an employer is a legally protected activity and often serves as a warning shot for the company to back off and review its actions. That employer is now on notice and could be hit with a retaliation complaint if the company mistreats you for going on the record with your concerns. Retaliation complaints are often easier to prove than the initial discrimination claim, Harrington says.

To pursue an age discrimination case under the Age Discrimination in Employment Act, the first step for nonfederal workers is filing a complaint, known as a "charge of discrimination," with the EEOC. Depending on where they live, nonfederal workers have either 180 days or 300 days from the date of the last incident to file. The agency will begin the investigation and notify the employer within 10 days.

On average, investigations take about 10 months and can involve the agency visiting the company, interviewing witnesses and requesting documents. After investigating the complaint, the agency will issue either a letter of determination, which attests that the EEOC believes discrimination likely occurred, or a dismissal and notice of rights, which means the investigation couldn't reasonably conclude that discrimination took place. Either way, you still have 90 days to file your own lawsuit after the EEOC finishes its investigation.

Mediation through the EEOC is another option. If you go that route, the mediator won't try to determine if discrimination occurred. Instead, the mediator will see if you and your employer can work out your concerns. The EEOC says this process usually resolves claims in three months, on average.

Most lawsuits never go to trial and are either settled or dismissed on summary judgment. Some workers don't take any legal action to avoid a potentially stressful and costly lawsuit. "It's a tough situation," Stegmeier says. "For a lot of people, they question, 'Do I want to speak up and say something and risk losing my job? Is it really something I need to do?' You do have protection under the law, but that doesn't mean it won't be a tough path."

Where to Get Help

Several organizations offer resources for fighting age discrimination and filing complaints, including the following:

• AARP devotes an entire section of its website to helping older workers. Go to aarp.com and click on "work & jobs." The section includes information about age discrimination, including how to fight it. The organization also has a directory of more than 1,000 employers that have pledged to provide equal opportunitiesfor all workers, regardless of their age.
• The Equal Employment Opportunity Commission addresses all types of discrimination in the workplace. At eeoc.gov, select "employees & job applicants" to learn more about ageism and the steps for filing a discrimination complaint, which you can do through anonline portal, in person, over the phone or by mail.
• Project WHEN, whose mission is to end all workplace harassment, offers guidance for victims of age-based harassment. Go to projectwhen.org and click on "how to report workplace harassment incidents" under "resources." The website lists contact information for each district EEOC office and other local agencies.