Age discrimination occurs when an employer treats an applicant or employee less favorably because of the person’s age. The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination against people who are age 40 or older. The ADEA does not protect workers under the age of 40. An employer may favor an older worker over a younger one, even if both people are age 40 or older.
To Which Employers Does the ADEA Apply?
The ADEA applies to businesses that have 20 or more employees who worked for the company for at least twenty calendar weeks (this year or last).
To Which Work Situations Does the ADEA Apply?
The ADEA prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.
It is illegal for anyone involved with a person’s employment–a supervisor, manager, co-worker, or even a customer–to harass a person because of his or her age. The law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not serious. Harassment can include offensive or derogatory remarks about a person’s age that are so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.
Age Discrimination and Employment Practices (Disparate Impact)
An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on an applicant or employee who is age 40 or older and is not based on a reasonable factor other than age (“RFOA”).
The ADEA also offers the following protections:
- Advertisements and job notices: employers generally may not include age preferences, limitations, or specifications in job notices or advertisements. They may specify an age limit only where age is a “bona fide occupational qualification” (“BFOQ”) reasonably necessary to the normal operation of the business.
- Apprenticeship programs: in general, an employer may not discriminate on the basis of age in apprenticeship programs, unless they fit within certain exceptions.
- Pre-employment inquiries: employers should not ask for an applicant’s age or date of birth; they may ask for it after the employee is hired if it is for a lawful purpose.
- Benefits: employers may not deny benefits to older employees. In some circumstances, an employer may reduce certain benefits based on age if the cost of providing the benefits to older workers is no less than the cost of providing the benefits to younger workers.
Waivers of ADEA Claims or Rights
In certain circumstances, waivers of claims or rights are permitted, such as in settling discrimination claims or for an exit incentive or other employment termination program. The ADEA sets specific requirements for these waivers.
How Do I Prove Age Discrimination?
You can show that age discrimination occurred either through direct evidence or circumstantial evidence. When circumstantial evidence is involved, a three-step test is used.
First, you need to establish a “prima facie case,” meaning that (1) you were at least 40 years old; (2) you were performing your job satisfactorily; (3) your employer took some adverse action against you, such as discharging you; and (4) your employer replaced you with a substantially younger employee who has equal or inferior qualifications or did something else that gives rise to an inference of age discrimination. (See Diaz v. Eagle Produce Ltd. P’hip, 521 F.3d 1201, 1207 (9th Cir. 2008)). Note that these factors might need to be adjusted to fit your particular case.
Second, your employer gets a chance to provide a “legitimate, non-discriminatory reason” for taking action against you.
Third, you get a chance to show that the employer’s reason is “pretext,” meaning a cover-up for discriminating against you because of your age. You need to make it through these steps to get to a trial. You can read more about the steps here.
If your claim goes to a trial, then you would need to show that your age was the “but for” cause of the employer’s decision, meaning if it weren’t for your age the employer would not have taken action against you. (See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).
DOES NEVADA LAW ALSO PROHIBIT AGE DISCRIMINATION?
Yes, Nevada law has very similar prohibitions against discrimination based on age.
WHAT CAN I DO IF MY EMPLOYER DISCRIMINATES AGAINST ME BASED ON AGE?
To learn about what action you can take, go here.
- Can an Employer Force You to Retire Because of Your Age?
- What Qualifies as a “reasonable factor other than age” (“RFOA”)?