What You Don’t Know About Age Discrimination
When people think of employment discrimination, they often think of discrimination based on race, gender, or disability. But age discrimination is very real. On the federal level, these claims are covered by the Age Discrimination in Employment Act, or ADEA. Indeed, ADEA claims continue to rise every year, and many think this will be the main form of employment discrimination in the future.
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What Age Do I Have to Be, in Order to Be Covered by the ADEA?
Age discrimination, simply put, is treating a person less favorably because of his or her age. However, not all forms of age discrimination are prohibited by federal law. Treating someone less favorably because of his or her youth is perfectly legal on the federal level (although state laws in some areas may prohibit age discrimination of any type). The ADEA itself only protects workers who are age 40 or over from age discrimination. Additionally, the ADEA only prohibits favoring younger workers over older ones on the basis of age. So if one worker is 65 and one is 45, and employer can treat the 65-year-old more favorably than the 45-year-old because of his or her age. But treating the 65-year-old less favorably than the 45-year-old because of the employees’ ages would be illegal.
How Common Are ADEA Complaints?
The U.S. Equal Employment Opportunity Commission tracks the number of complaints made under the ADEA each year. While each case is different and some claims are more substantiated than others, the number of complaints filed each year is shocking. There were over 23,000 complaints filed in 2010, 2011, and 2013. In 2012, the number dropped, but only to 22,857.
Does the ADEA Prohibit Age-Based Discrimination?
Yes. Assuming the harassed person is age 40 or older, and that he or she is being harassed for being “old” as opposed to “young,” then the harassment is prohibited. This does not mean that an employer can be sued because one employee made one passing, minor, age-based joke or comment. What it does mean is that when harassment is so common or severe that it creates a hostile work environment or results in the harassed person being fired or demoted (or subjected to similar negative workplace repercussions), then it is unlawful.
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Dan Kalish is a partner and founder of HKM Employment Lawyers (www.hkm.com), an employment law firm that represents individuals nationwide. A graduate of Harvard College and Yale Law School, Dan frequently speaks and writes about issues related to employment law on hkm.com/employmentblog.