With America's increasingly older workforce, we are seeing more claims brought against employers for age discrimination. Federal legislation and most states prohibit age discrimination.  Accordingly, employers would be well-advised to work with experienced employment attorneys to stay current on legal developments in this area and ensure that their policies and procedures are compliant. If you have any questions about your company, please contact our Employment Law practitioner, Kate Heredia. 

Age Discrimination Defined 

Age discrimination occurs when an employee or a job applicant receives unfair treatment due to their age. The Age Discrimination in Employment Act (ADEA) is a federal law designed to protect persons who are 40 years of age or older from discrimination in the workplace. Importantly, the employer or person acting on behalf of the employer (e.g., a supervisor, manager, or human resources personnel) can be 40 years old or older, too – the age of the offender is irrelevant.  Note that the ADEA protects only workers over the age of 40.  Age discrimination is prohibited under the Illinois Human Rights Act as well.  

Employers Subject to the ADEA 

• Companies with 20 or more employees 
• Employment agencies 
• Local, state and federal government employers
• Labor organizations 

Examples of Age Discrimination 

• Comments, jokes or insults regarding age 

While a single comment on its own is not enough to constitute age discrimination under the ADEA, these types of comments, if consistent and regular, can create a hostile work environment that could be considered harassment.   

• Loss of promotion due to age 

Age discrimination would come into play if a younger, less qualified employee receives a promotion over an older, more qualified employee.  

• Unjust disciplinary action 

Employers must ensure that negative feedback, criticism or discipline of an employee always has a legitimate, non-discriminatory basis.    

• Unequal pay  

This is particularly relevant when a younger employee is paid more for the same role and has a similar experience level as an older employee.  

• Hiring or advertising geared exclusively to younger workers 

Employers can create a discriminatory environment if their advertising for open positions and hiring procedures favor younger workers, whether intentional or not.  

Making a Case for Age Discrimination 

An employee must establish that: 

1. They are 40 years old or older; 

2. Their job performance is satisfactory; 

3. An adverse job action was taken against them (e.g., termination, demotion, pay cut, forced into retirement, retaliation for reporting unfair practices) in spite of their satisfactory performance; and 

4. A similarly situated and substantially younger employee was treated more favorably, and if applicable, the employer has a pattern of favoring younger employees. 

What Should Employers Do to Prevent Age Discrimination? 

• Train Managers and Employees 

All employees, particularly those in positions of leadership, can benefit from annual training on what age-based discrimination is and how to avoid it. Proper training should include examples of age-based discrimination, appropriate alternative ways to approach situations, and sensitivity training for working with employees of different ages and backgrounds.  

• Use Performance-Based Reward Systems 

Employee rewards should be based on an employee's actual performance using objective, predetermined and measurable criteria whenever possible.  Subjective and arbitrary incentives and rewards can have the appearance of bias, even when unintentional.  

• Review and Implement Policies to Avoid Age Discrimination at All Stages of Employment 
  • Evaluate hiring, promoting and terminating practices to ensure legitimate, non-discriminatory business reasons are the basis for all decisions. 
  • Remove employee birthdates from any documentation where it is not required, including employment applications. 
  • Establish uniform disciplinary procedures and apply them consistently and fairly. 
  • Maintain an anti-harassment and anti-retaliation policy and ensure employees can report discrimination without fear of retaliation.  
  • Consider creating mentorship programs for new employees and those with tenure to build bonds and promote mutual respect.