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Capitalizing on the Experience and Insights of a Maturing Workforce

Between 2020 and 2060, the number of adults 65 and over is projected to increase by 69 percent, from 56.0 million to 94.7 million. As the population ages, so will the workforce.  With that, prospects for age discrimination grow.  A recent AARP study of adults age 45 and older found that more than 60% said they had seen age discrimination in their workplace or experienced it themselves.

In 2019, 15,573 age discrimination charges were filed with Federal Equal Employment Opportunity Commission (EEOC).  This makes ageism one of the most commonly reported forms of workplace discrimination, just below race and sex discrimination.

Age discrimination in the workplace occurs when an employer discharges or refuses to hire a person on the basis of age or determines one’s compensation or other terms and conditions of employment on the basis of age.  Among indications of such discrimination are job opening notices seeking “recent college graduates,” “those ages 25-39,” “younger associate,” or using other similar phrases that would deter an older person from applying.

An employment decision based on age can be lawful in limited situations where age is a bona fide occupational qualification reasonably necessary for the normal operation of the particular business.  Commercial pilots and those in the fashion and entertainment industries are examples frequently cited.  Also, decisions based on good cause or any other reasonable factor other than age are not prohibited by federal law. “Other reasonable factor” refers to an element that may accompany age, such as declining health, strength, or diminishing competence.

These and related rules are found in the Age Discrimination and Employment Act (ADEA), the only federal legislation that addresses age in the workplace.  The law protects public and private sector employees aged 40 and up. Private sector employers with at least 20 employees and engaged in industries affecting commerce must comply with the ADEA.

One believing himself to be a victim of age discrimination should first file a Charge of Discrimination with the EEOC within 180 days of being notified of the adverse employment decision. The EEOC will investigate an ADEA charge.

If the EEOC is backlogged or does not release the matter within 180 days of filing, a complainant can ask for a “right to sue letter.” He or she has 90 days from receipt of a right to sue letter to file a lawsuit.  However, you do not need a right to sue letter before filing an age discrimination case, provided at least 60 days have passed from the date of filing of the Charge of Discrimination.

Potential damages or awards in an age discrimination case are: injunction to prevent future discriminatory employment practices; reinstatement; an award of back pay and front pay; and liquidated damages (potentially double the amount of the total monetary damages).

Employers should avoid discrimination on the basis of age unless age is a bona fide occupational qualification, as described above.  Otherwise, the better legal advice for employers is to take advantage of the insight, experience, and maturity that older applicants and workers frequently bring to the table.

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