Ask The Expert: Age Discrimination in Job Search and the Workplace
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January 11-18, 2021
Have you ever seen or experienced age discrimination at work or feel that your age is negatively affecting your job search? About 3 in 5 workers over 50 surveyed by AARP think older workers face discrimination based on their age.
AARP Foundation Senior Attorney Laurie McCann is an expert in this field, with extensive litigation experience related to age discrimination and other employment issues.
Laurie will be here to answer your questions on age discrimination in the workplace – and to address your options under the law and what you can do to protect yourself. Join us January 11-18, 2021!
Yes, I have experienced age discrimination in the workplace and the results has been very hurtful and painful. I was 65 years old and had worked for the company for over eleven years. In March of 2019 I was notified by HR and my supervisor that they were going to place an ad for a new Administrative Assistant, and that once one was hired, my job title was going to go from Administrative Assistant to Receptionist and my hours were going to go from 40 hours a week to 32 hours a week, and starting in September of 2019 my hours would then go down to 24 hours a week. I read over the job description of the Administrative Assistant position, which were exactly the job duties that I had been doing the past 11+ years. I asked them why they thought I was not qualified ( in that job description for the same duties I have been doing the past 11 years) and they said that I was not there yet and that it was too late for me to go through any training. I applied for the position when they posted it and they did not grant me an interview. When I followed-up with them on getting an interview, they replied with... "we are not going to give you an interview... don't you remember the meeting we had in March?" I wrote a letter of complaint to HR of the company. They hired a new Administrative Assistant in July 2019 who is 30 years younger than me. I went to the EEOC in my state and they felt I had a legitimate case. My age discrimination case was filed with the EEOC in December 2019. The company did not want mediation. I responded to the EEOC with my response from the company. In March of of 2019, the company laid me off and terminated the Receptionist posti
Yes, I have experienced age discrimination in the workplace and the results has been very hurtful and painful. I was 65 years old and had worked for the company for over eleven years. In March of 2019 I was notified by HR and my supervisor that they were going to place an ad for a new Administrative Assistant, and that once one was hired, my job title was going to go from Administrative Assistant to Receptionist and my hours were going to go from 40 hours a week to 32 hours a week, and starting in September of 2019 my hours would then go down to 24 hours a week. I read over the job description of the Administrative Assistant position, which were exactly the job duties that I had been doing the past 11+ years. I asked them why they thought I was not qualified ( in that job description for the same duties I have been doing the past 11 years) and they said that I was not there yet and that it was too late for me to go through any training. I applied for the position when they posted it and they did not grant me an interview. When I followed-up with them on getting an interview, they replied with... "we are not going to give you an interview... don't you remember the meeting we had in March?" I wrote a letter of complaint to HR of the company. They hired a new Administrative Assistant in July 2019 who is 30 years younger than me. I went to the EEOC in my state and they felt I had a legitimate case. My age discrimination case was filed with the EEOC in December 2019. The company did not want mediation. I responded to the EEOC with my response from the company. In March of of 2020, the company laid me off and terminated the Receptionist position. They said it was due to COVID-19. I was the only person in the company that had been let go. In September of 2020 I was assigned to a different investigator. In November 2020 the EEOC dismissed my case.
I am so terribly sorry to say and feel that I do not have faith anymore in our judical system. How can companies get away with lying and destroying peoples lives?
@yearofthehorse, I am so sorry to hear about your devastating experience with age discrimination at the hands of your former employer and then your frustrations with the EEOC. All too often, the agency accepts the employer's explanation of facts without sufficient investigation. AARP will continue its advocacy efforts to urge the EEOC to be an effective advocate for the rights of individuals it is charged with protecting. Thank you for sharing your story as it reinforces how important this task is.
@lmccann58, Thank you for your concern. It was and has been a very devastating experience to say the least. I've become very emotionally distraught with the process and the outcome of my case and am sad that companies can get away with injustice and go against the laws that are to protect the individual and humanity in the workplace. I do appreciate and thank AARP's continual hard-working advocacy efforts to urge the EEOC to be an effective advocate for the rights of individuals it is charged with protecting. Thank you for bringing much needed attention on this topic and again for your ongoing advocacy efforts.
Hi @RichardL679908, Here are a list of the U.S. Supreme Court decisions concerning age discrimination and the Age Discrimination in Employment Act (ADEA). AARP/AARP Foundation filed friend-of-the-court (amicus curiae) briefs in almost all of them.
Supreme Court ADEA Decisions
United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977) Retirement plan adopted before enactment of the ADEA could not be a subterfuge to evade the law, and came within the ADEA's § 4(f)(2) defense for bona fide employee benefit plans.
Lorillard v. Pons, 434 U.S. 575 (1978) (unanimous) The parties to an ADEA action have the right to a jury trial because the ADEA incorporated the FLSA provision authorizing "legal" relief.
Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) If the state has a fair-employment-practice agency, an ADEA plaintiff must file a complaint with that agency before suing, but that complaint need not be timely under state law.
Leheman v. Nakshian, 453 U.S. 156 (1981) When Congress amended the ADEA in 1974 to protect federal employees, it allowed federal employees to sue the federal government but did not give them the right to a jury trial.
EEOC v. Wyoming, 460 U.S. 226 (1983) The 1974 extension of the ADEA to state and local governments was a valid exercise of Congress's powers under the Commerce Clause.
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) (unanimous) The McDonnell Douglas test is irrelevant where the plaintiff presents direct evidence of discrimination; the standard for willful violations is whether the employer knew or showed reckless disregard for whether its conduct was prohibited by the ADEA. The EEOC intervened to join as a party in the case.
Johnson v. Mayor and City Council of Baltimore, 472 U.S. 353 (1985) (unanimous) A state-government employer must establish that its mandatory retirement age for firefighters is a bona fide occupational qualification and cannot rely on the federal provision permitting mandatory retirement of federal firefighters at age 55.
Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985) (unanimous) An airline defending a mandatory retirement age as a bona fide occupational qualification must show that that age is a legitimate proxy for appropriate job qualifications either because no persons over that age are qualified or because it is impossible or highly impractical to assess the fitness of employees over that age on an individual basis.
Public Employees Retirement System v. Betts, 492 U.S. 158 (1989) Invalidated the EEOC's regulation defining "subterfuge"; held that the ADEA prohibits only those employee benefit plans that were designed to discriminate in the non-fringe-benefits aspects of employment, superseded by the Older Workers Benefit Protection Act of 1990.
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) District courts have discretion to facilitate notice to potential plaintiffs in ADEA collective actions under § 626(b).
Stevens v. Department of the Treasury, 500 U.S. 1 (1991) A federal employee can sue his agency under the ADEA without first going through the agency's EEO process, but she must first notify the EEOC of her intent to sue within 180 days of the discrimination and at least 30 days before suing.
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) Mandatory arbitration agreements are enforceable under the Federal Arbitration Act with respect to ADEA claims.
Astoria Federal Savings & Loan Ass'n v. Solimino, 501 U.S. 104 (1991) (unanimous) If the state fair-employment-practice agency finds no discrimination but that finding is not reviewed by a state court, the finding does not preclude the employee from suing in federal court.
Gregory v. Ashcroft, 501 U.S. 452 (1991) The plaintiffs, appointed state judges, were "appointees on a policymaking level" under ADEA § 11(f), 29 U.S.C. § 630(f), and therefore were not protected from age discrimination by the ADEA.
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) Held that the plaintiff must show that age "played a role" in, and "had a determinative influence" on the employer's decision; clarified framework for analyzing a factor that is a proxy for age; affirmedThurston's "knowledge or reckless disregard standard" for awards of liquidated damages in cases involving "informal decisions" by employers.
McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) (unanimous) If the employer violated the ADEA in firing the plaintiff and the employer later learned of facts that it can show would have caused the employer to fire the plaintiff lawfully, the plaintiff cannot secure reinstatement or front pay; the plaintiff may still obtain back pay, but only until the employer discovered the after-acquired evidence.
Commissioner of Internal Revenus v. Schleier, 515 U.S. 323 (1995) Amounts received by taxpayer as back wages in settlement of ADEA claims are not excludable from gross income; ADEA liquidated damages are punitive in nature and therefore also not excludable from gross income.
1996 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) (unanimous) ADEA plaintiffs need only show that their replacement was substantially younger to establish a prima facie case.
Lockheed v. Spink, 517 U.S. 882 (1996) ERISA does not prohibit employers from giving additional pension benefits to employees who release their potential employment-related claims; Congress amended ERISA and the ADEA in 1986 to prohibit age-based cessations of benefit accruals and age-based reductions in benefit-accrual rates, but those amendments did not apply retroactively.
Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998) A release that did not comply with the Older Workers Benefit Protection Act did not bar the plaintiff's ADEA law suit, even though she had not returned, or offered to return, the money she had received in exchange for the release.
Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) The ADEA did not validly abrogate the states' Eleventh Amendment immunity from suit by private individuals.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) If the plaintiff offered evidence establishing a prima facie case and evidence showing that the employer's articulated reason is pretextual, the jury may find for the plaintiff; the plaintiff is not required to introduce additional evidence to prove pretext.
General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004) The ADEA bars discrimination favoring a younger employee over an older one; it does not prohibit favoring an older employee over a younger one.
Smith v. City of Jackson, 544 U.S. 228 (2005) The ADEA authorizes disparate-impact claims; a practice having a disparate impact does not violate the ADEA if the employer's decision adopting the practice was based on a "reasonable factor[ ] other than age".
Spring/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008) The Court rejected aper seadmissibility rule with respect to trial witnesses and recognized the wide discretion of district courts in determining the admissibility of evidence.
Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) (amicus) An ADEA charge must include certain basic information and must ask the EEOC to take remedial action on the charging party's behalf; the EEOC's failure to do its duty does not render a charge invalid; here, the plaintiff's intake questionnaire and accompanying affidavit constituted a charge.
Gomez-Perez v. Potter, 553 U.S. 474 (2008) The ADEA provision barring "discrimination" against federal employees also prohibits retaliation.
Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008) If an ADEA plaintiff has offered evidence showing a disparate-impact claim, the employer bears the burden of proving that the non-age factor it relied on was a reasonable one.
Kentucky Retirement Systems v. EEOC, 554 U.S. 135 (2008) The state's disability-retirement plan did not violate the ADEA: the trigger for less favorable treatment was the employee's pension status, not his age; the plan had a non-age-related purpose and did not rely on stereotypical assumptions; and the EEOC offered no evidence that the differential treatment was actually motivated by age as opposed to pension status.
14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) The provision in the collective bargaining agreement that clearly and unmistakably required union members to arbitrate their ADEA claims is enforceable under the Federal Arbitration Act.
Gross v. FBL Financial Services, Inc. , 557 U.S. 167 (2009) An ADEA plaintiff must prove that his age was the but-for cause of the challenged adverse action; the burden of persuasion does not shift to the employer as it does in Title VII mixed-motive cases, even if the plaintiff has offered evidence of age discrimination.
2020 Babb v. Wilkie - The ADEA’s federal-sector provision—which requires that such workplaces be “made free from any discrimination based on age”—prohibits all federal employer conduct for which age is a consideration, not just considerations if a federal employee or job applicants can show that they would not have incurred harm to their employment opportunities “but for” such consideration of age.
I’m a physician assistant who recently moved to Washington state to be close to my elderly father. I applied online to the only major medical employer in the area. It was a requirement to submit my date of birth in order to continue with the application process. Despite “head hunters” telling me I have an impressive resume, 5 years of work experience and a 3.9 GPA while in school I am told that there are so many “more qualified “ applicants they are unable to even give me an interview. Any thoughts on how I can get past this? I’m told that due to COVID everyone I would need to talk to is working from home and only comes into the office on a random basis.
@lisad270587, I am sorry to hear about your frustrations finding a job after moving to be closer to your father. I was disheartened to hear that the medical employer you applied to requires applicants to submit their date of birth. Right now, asking for birthdates in an online application or even in an interview is not automatically unlawful. Instead, the Equal Employment Opportunity Commission's (EEOC) guidance states that such requests will be closely scrutinized to ensure that they are for a lawful purpose. AARP believes such requests should be prohibited because at the very least they deter older workers from applying. We have urged the EEOC to change its guidance and will continue to try to persuade the agency to do so.
@lmccann58, I have an age discrimination, disability and retaliation case against the state of Georgia. I filed in October 2019. I declined mediation and a investigator was assigned in May 2020. I have not had any contact with the investigator since August 2020. I have sent numerous emails with no response. Can you offer any suggestions to what I can do? Covid-19 has state employees working from home and I don't have any other way to contact my investigator
@Jaguar425 I'm sorry to hear about the lack of communication from your investigator. Is your case filed under the federal law - the Age Discrimination in Employment Act (ADEA) - or the Georgia statute? This will help me in providing you with some suggestions/information.
@Jaguar425 , I regret to have to inform you that you are in a frustrating position. First, the Georgia statute is extremely weak. It is essentially words on paper. It does not provide for any monetary relief to victims of employment discrimination and it has no provision to allow victims to sue their state employers in court. However, you would not have fared much better if you had filed your claim under the federal Age Discrimination in Employment Act (ADEA) because a U.S. Supreme Court case decided in 2000 - Kimel v. Florida Board of Regents - held that state employees may not sue their state employers for monetary relief under the ADEA. Your only recourse would have been to convince the Equal Employment Opportunity Commission (EEOC) to pursue your case on your behalf, which happens very rarely. AARP hopes to persuade Congress to amend the ADEA to restore the rights of state employees. We also encourage state legislators to strengthen their age discrimination laws. In fact, Congress intended the ADEA to be a floor of protection, not a ceiling, and many states have stronger laws than the ADEA. Unfortunately, Georgia is not one of them. I'm sorry I could not be of assistance.
Welcome to the AARP Online Community--thanks for being here!
@lmccann58, let's get started with a question we often hear. Can you tell us what qualifies as age discrimination? Also, what should a person do if they suspect they're being passed over for promotions or special projects because they're much older than their peers?
Thanks for the question AARPLynne. Under the federal Age Discrimination in Employment Act (ADEA), employers must ignore age when making the vast majority of employment decisions. There are a few narrow exceptions. So, age may not be considered when making hiring, firing, promotions, or any other decisions. If you believe your age is playing a role in promotion and other decisions, keep copious notes of why you think so. For example, who was assigned to those special projects, were they younger? How did their qualifications compare to yours? Have you heard any age-related comments, such as why promote an older person if they are just going to retire soon anyway? You can start by sharing your concerns with someone at work - your manager or an HR representative - again, keep notes about how the conversation goes, however, to preserve your right to challenge the discrimination in court, you must file a timely charge of age discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADEA. The website for the EEOC is www.eeoc.org. Charges must be filed within 180 or 300 days of the alleged discrimination depending on the state.
In recently applying for jobs online, many companies are now requiring an "account" set up to submit your resumè. These account forms require your birthday, giving the company your age up front. In fine print, they state it won't be used in considering you for the job. Are they allowed to ask for that?
Great question @ChristineA655425 and I wish I had a better answer. Right now, asking for birthdates in an online application or even in an interview is not automatically unlawful. Instead, the Equal Employment Opportunity Commission's (EEOC) guidance states that such requests will be closely scrutinized to ensure that they are for a lawful purpose. AARP believes such requests should be prohibited because at the very least they deter older workers from applying. We have urged the EEOC to change its guidance and will continue to try to persuade the agency to do so.