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What All Workers Over 40 Need to Know About Age Bias

June 10, 2016 Workplace Discrimination

Sometimes age discrimination can be extremely subtle, but that doesn’t make it legal

“It’s time you got rid of those dinosaurs.”

“We need to have younger people running the organization.”

Those statements, paraphrased from a recent court case alleging age discrimination, would probably tip-off most older workers off that their jobs might be on the line.

However, age discrimination is often much more subtle. Direct references to age may be replaced with talk of “culture fit,” “energy,” or “progressive ideas” … all terms that may reference youthfulness without actually referencing age.

In any case, it’s important to know that the law offers specific protection for age discrimination – whether it’s subtle or direct.

Who is Covered

There are several different federal laws that offer protection from various types of discrimination based on characteristics such as disability, race, color, religion, sex, or national origin.

However, age discrimination is covered under its own law, called the Age Discrimination in Employment Act (ADEA). Job applicants and employees who are over the age of 40 are generally covered by the ADEA.

Employers who must comply with the ADEA include all private employers with 20 or more employees, the federal government, state and local governments (including school districts), employment agencies, and labor organizations.

What’s In the Law

Under the ADEA, it is unlawful to discriminate against a person over 40 because of his or her age with respect to any term, condition, or privilege of employment, including:

  • hiring
  • firing
  • promotion
  • layoff
  • compensation
  • benefits
  • job assignments
  • training


In addition, workers who speak out against age discrimination have legal protection from retaliation. That includes people who:

  • oppose employment practices that may discriminate based on age
  • file an age discrimination charge
  • testify or participate in an investigation, proceeding, or litigation brought under the ADEA

One particularly interesting aspect of the ADEA is that it permits employers to favor older workers based on age, even when doing so adversely affects a younger worker who is also over 40. For example, a 41 year-old worker would generally be unable to claim age discrimination after being replaced by a worker who was 67.

On the flipside, a 67 year-old employee may be able to bring an age discrimination claim after being replaced by a 41 year-old.

The Subtle Slights

Now let’s talk about the more subtle side of age discrimination.

People over 40 are protected from age-related harassment, such as being subjected to offensive comments about their age. However, simple teasing, offhand comments, or non-serious incidents that pertain to someone’s age are generally not considered unlawful.

Obviously, there’s a lot of room for interpretation in matters such as this. After all, what one person may find serious, another may not.

According to the Equal Employment Opportunity Commission, the agency charged with enforcing federal laws against discrimination, a situation may cross the line into unlawful territory when it creates a hostile work environment, or when it results in a person over 40 suffering an adverse employment action, such as a termination or demotion.

It’s also important to know that harassment doesn’t necessarily have to be from a supervisor in order to be considered unlawful. The behavior could be from a coworker, or even a client or customer.

When Discrimination Is a Matter of Policy

Sometimes a company’s policies may have an unfair impact on people over 40. For example, one case that we blogged about several months ago involved a company’s recruiting policy that specified that applicants have a certain number of years of experience. That practice had the effect of excluding workers over a certain age.

While the ADEA prohibits employers from noting age preferences in employment ads (except in very rare circumstances), it’s clear that some employers have attempted to find creative ways to work around the restriction.

Employers are also prohibited from denying apprenticeship opportunities based on age, as well as denying or reducing benefits based on age.

Call Us for a Free Consultation

In addition to federal law, many states and municipalities may have their own legislation dealing with age discrimination. For example, Pennsylvania, New Jersey, and Philadelphia all have laws against age discrimination in employment.

Age discrimination claims can be complicated by many different laws and multiple jurisdictions. That’s why it’s a good idea to speak to an employment law attorney if you believe that you’ve been treated unlawfully due to your age.

Email us at, or call (267) 273-1054 for a free consultation.