How to Deal with Age Discrimination at Work

Age discrimination is an all too common reality in the workplace, affecting countless adults among the 40-plus demographic. A wide-ranging AARP study released in 2018 found nearly 2 out of 3 workers age 45 or older have experienced age discrimination on the job. What's more, according to Alex Mardirossian, a California attorney and partner at HM Legal Group who specializes in employment law, many older employees are unaware when it is happening to them. Employers, he said, will use an arsenal of excuses to validate such things as terminations and demotions that may be tied to age. Here are more than two dozen tips to identify it when it takes place and how to respond in such situations.

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The signs of age discrimination vary from the subtle to the blatant, said Matt Besser, an employment discrimination lawyer and professor at Case Western University School of Law.

"Management might start asking an older employee about retirement plans, or suggesting that the employee should retire. Older employees might also start getting comments about ‘slowing down,' or be subjected to ageist name-calling, like ‘grandma' or ‘dinosaur,'" Besser said. There may also be a conspicuous pattern of the employer pushing out older workers or hiring only young employees, he added. Other signs include employers giving younger employees better assignments, better training, or better sales territories.

If you believe you may be the target of age discrimination, it's critical that you have actionable examples to prove your point, says Stan Kimer of Total Engagement Consulting by Kimer, a diversity and career development consultancy.

"It cannot just be a ‘feeling' but has to be something differentiated with facts," Kimer suggested. "Actionable data are facts about your performance and accomplishments at work that may be better than a younger peer who gets promoted or received a better job evaluation. For example, you may have closed more sales as a salesperson than a younger peer, but they get a sales award while you do not, or they get promoted to sales manager over you."

Work memos, texts, emails, and voicemails are among the items that can be used as proof to substantiate claims of ageism, Mardirossian said. "This may include direct content such as ‘We feel that you are too old to continue working here,' as well as indirect content such as ‘We are looking to introduce a more youthful atmosphere here,' " he said. "Documenting these types of messages will give you leverage if you are later terminated and feel that it's due to your age."

Being able to cite more than one reason or occasion that has led to your concerns about ageism will help further substantiate a complaint, says Robin Schwartz, a human resources director for Career Igniter. "If you can see a trend with younger staff receiving promotions, it might be beneficial to ask your boss what skills they possess that you do not," Schwartz said.

While gathering proof to substantiate a claim is very important, attorney Sheri Mooney, whose company Mind Squad HR provides human resources advice for employers of all sizes, says targeted employees should not feel as though they must conduct their own investigation.

"Take some limited time to gather the pertinent facts, so you're able to make a concise report but not so much time that you end up frustrated and scared to proceed," Mooney advises. "While it is important to report the facts, a targeted employee should not need to conduct their own investigation or wait for glaring evidence to initiate a report. Credibility is an important consideration for the investigator and a prompt, concise verbal report can go a long way in making your case."

In addition to gathering examples of perceived ageism, if you suspect you're being targeted for being older, begin to take steps to protect your legal rights. This starts with researching your employer's discrimination policies and procedures, says Los Angeles employment attorney Keith Custis of Custis Law. "Many employers have an established procedure for reporting discrimination in the workplace," Custis said. "Look in your employee handbook and, if there's a reporting procedure, follow it."

It's often a good idea to report perceived discrimination to human resources, says Besser of Case Western University School of Law. "It's best to do that in writing so there's a record of the complaint," Besser adds. "Many employees are afraid to speak up for fear of losing their jobs. Sticking your head in the sand is unlikely to make the problem go away though."

Many companies these days have outsourced human resources functions to remote companies, in order to cut costs. This can make reporting age discrimination somewhat confusing. 

"Where there is no local HR department, there may be a company policy about how to file complaints and with whom," suggests Amanda Farahany, managing partner with the Atlanta law firm Barrett & Farahany. "If not, or if there is no HR, make a complaint in writing to the highest officer at the company, or even the owner if the owner is accessible." Again, email is preferable for record-keeping purposes.

The federal Age Discrimination in Employment Act of 1967 protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

The Age Discrimination in Employment Act also prohibits employers from retaliating against employees for making a good faith claim of age discrimination, said Besser at Case Western University School of Law. "But in order to be protected from retaliation, it must be reasonably clear the employee is complaining about discrimination on the basis of age. So be specific when you complain," Besser says.

Venting on social media or publishing information about a potential discrimination lawsuit on Facebook, Twitter, and other such platforms is a bad idea, says Matthew Kidd, a Boston-based attorney who handles employment cases.

"Any information published online could be used against you in court later if you decide to pursue legal action," Kidd explained. "By publishing any information about your case online through social media, you may be unknowingly giving the opposing party incriminating, mitigating, or contradictory statements, facts, and other information which could weaken your case or even lead to a dismissal prior to adjudication by trial."

Even when discrimination may not necessarily be taking place, it's important to be confident about the value you bring to the workplace and to be able to articulate that value in order to minimize age-related issues, says Diane Huth, self-decribed "Accidental Career Coach," and author of "Reinvent Your Career – Beat Age Discrimination to Land Your Dream Job." "Showcase your strengths and unsung contributions to your employer," Huth suggests.

If age comes up at your place of employment, refer back to experience and the assets you bring to the table, suggests Maeve O'Byrne of Cumhacht Coaching & Consulting. "Try not to make age an issue, either in interviews or in the workplace, and that goes both ways," O'Byrne said. "Don't make comments like ‘Oh you're too young to remember,' either in the workplace or in casual conversations after work. Keep the conversation about what you bring to the table, the skills, experience and value."

What does this mean exactly? "The stereotype of an ‘old' person includes the body is failing, the mind is going, and that we become frail and less able to do things," explained O'Byrne of Cumhacht Coaching & Consulting. It also includes such notions as the older person has a lower ability, or is no longer motivated. Or that because of age, someone may be less productive. "Work hard, demonstrate creativity, and show that you're engaged," O'Byrne said.

Among the additional concerns tied to older workers are that they are more difficult to train, less adaptable, inflexible and unwilling to change how they do things and therefore they provide a lower return on investment, says O'Byrne of Cumhacht Coaching & Consulting. "Too, there is the belief that older workers are more expensive, they earn more, use more benefits and they will retire before the employer sees any major return on training investment," O'Byrne explained. "Be open to change, look at it as an opportunity to learn."

One more bit of advice on this point from O'Byrne. Always think about what you say. "Never say ‘Oh, but this is the way we've always done this!' Or when you forget something ‘I'm getting old, my mind is going.' Or, ‘I hate being older, I can't sit all day any longer, my joints hurt,'" O'Byrne advises. "Think about how that lands with your younger colleagues. It reinforces not just that you're old, but that growing old is a ‘bad' thing." For women in particular, talking about going through menopause to anyone who will listen gets tiresome and firmly puts you in the category of old, O'Byrne said. Leave that chatter to when you're amongst friends.

If you got a degree 30 years ago, those skills are likely not as relevant today, said Huth, author of "Reinvent Your Career – Beat Age Discrimination to Land Your Dream Job." "Employers are embracing and seeking new certified skills, so get additional training certificates, and badges," she says. "In most cases, the company will pay for training, either through human resources or through educational reimbursement programs, which are generally used to get a college degree, but can be used for training and certification programs."

The No. 1 reason companies prefer younger workers is their technology skills, Huth said. "To stay relevant to ANY employer, you need to embrace technology head-on, and seek ways to stay as relevant as humanly possible."

Don't leave your employer guessing when it comes to your future employment plans as you grow older, Huth says. "It's okay to say, ‘I really enjoy this job and my career, and I plan to continue to work until I'm at least 65 or 68, or X number of more years," said Huth, who suggests you may also want to ask: "Are there any new skills or additional training I should be looking at to continue to provide the best performance for the company?"

If despite all your efforts, you still feel you're the target of age discrimination and that blatant and substantiated harm has been done to you, and the management team refuses to address it, consider filing a complaint with the Equal Employment Opportunity Commission, suggests Kimer of Total Engagement Consulting by Kimer. The EEOC is responsible for enforcing the Age Discrimination in Employment Act.

In some cases, co-workers or supervisors might harass an older worker in an effort to force them to quit, says Custis of Custis Law in Los Angeles. "If you feel this is happening to you, don't quit. That will make it harder to win your case," Custis said.

While involving a lawyer in your case might seem intimidating and costly, Besser of Case Western University School of Law, urges people not to be worried about the cost. "Most employment discrimination lawyers who represent employees work on contingency, meaning the employee doesn't owe anything unless the lawyer is successful on the case," he explained.

It's critical, however, when contemplating hiring an attorney, to find someone with specific expertise in age discrimination cases, Besser noted.

"A mistake that employees sometimes make is to get any lawyer they can find, without checking into the lawyer's experience," he said. "That's dangerous because employment cases are very complicated and difficult to win. There are lots of traps for unwary lawyers. So, hiring a lawyer who knows where the evidence of age discrimination tends to hide, and what traps to look out for, is the best bet."

Generally, obtaining an attorney is most common in situations when someone has been terminated, said Mardirossian of HM Legal Group. The main purpose of hiring an attorney at this juncture is to obtain compensation.

"An attorney's assistance can be used in regards to being reinstated, or receiving a promotion that you were looked over for, but if the employee desires to continue working with that employer, it will definitely create a much more hostile and unfriendly working environment if the employee utilizes an attorney," he explained. "In short, an attorney should mainly be used if an employee is either terminated or has no desire and or plans to continue working for the employer."

Lastly, it's critical to move fast when it comes age discrimination complaints as the time limitations for bringing an age discrimination claim are very short, said Besser at Case Western University School of Law.

"Employees who wait too long will be forever barred from pursuing their claims," said Besser, who noted that the statute of limitations for age discrimination varies from state to state. "In Ohio, it's only 180 days. Under federal law, it is technically 180 days as well, but can extend to 300 days, depending on what state the employee lives in. The bottom line is that time is short, and making a mistake with the statute of limitations will forever stop employees from pursuing their claims."