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An Age of Discrimination

Eric Einhart

Eric Einhart earned his Bachelor of Business Administration in Marketing at Baruch College, City University of New York. Eric is currently in his third year at New York Law School where he concentrates his studies in the subject areas of Elder Law, Trusts and Estates and Tax Law.
In addition to attending law school, Eric works as a Law Clerk for an Elder Law firm in Westbury, New York. Eric is presently participating New York Law School’s Elder Law Clinic at NYLS, where he helps represent allegedly incapacitated individuals in guardianship proceedings.

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Sometimes my family and I tease my 57-year-old father about his age. We have been known to lovingly comment on his graying hair, offer to help him cross the street, or ask him about his AARP membership. He usually laughs at these jabs and reminds us that we will be his age one day. While these types of playful remarks may seem innocent enough, they could be considered age discrimination if they were made in a different setting, or taken out of context.

Age discrimination affects individuals of all ages, but it is most prevalent among senior-citizens. The U.S. Equal Employment Opportunity Commission (EEOC) defines age discrimination as treating someone (an applicant or employee) less favorably because of his or her age. Age discrimination, which often occurs in the work place, has recently become a widespread issue. Due to the weakened economy, many seniors are forced to either remain employed longer or return to the workforce just to make ends meet. According to the Department of Health and Human Services Administration on Aging (AoA), about 6.5 million Americans age 65 and over were in the labor force in 2009. These working seniors constitute approximately 4.2 percent of the U.S. labor force, including about 3.6 million men and 2.9 million women.

Image Copyright Fotocrisis, 2012

The problem of age discrimination in the work place usually arises when there is a troubled economy, because older workers typically bear the brunt of massive layoffs and workforce reductions. If the seniors who lost their jobs in an economic downturn are not able to retire, then they may be faced with hiring policies that discriminate based on age when they try to reenter the workforce. According to AARP, the number of unemployed workers age 55 years and older has increased by 330 percent over the last 10 years. This means that many older workers are now searching for jobs in a cutthroat market that often favors younger employees.

The EEOC claims there has been a 17 percent increase in the number of age-discrimination complaints filed since the economic downturn began in 2007. Despite this increase, age discrimination continues to go unreported because there is a lack of awareness about the law. Additionally, many older workers are more likely to forego a potential age discrimination claim to focus their efforts on finding a job. Before dismissing the option of filing a claim, it is beneficial to understand the types of age discrimination and the laws designed to protect against them.

Age discrimination may occur in the work place as a result of discriminatory employment policies, practices or harassment. It is unlawful to harass a person based on his or her age. Making offhanded remarks about a person’s age might seem like simple teasing, but it could be considered harassment if it occurs so frequently or is so severe that it creates a hostile work environment, or results in an adverse employment decision. The harasser can be the victim’s supervisor, a supervisor in another department, a co-worker, or even a customer. According to the EEOC, an employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.

There are many state and federal laws that prohibit age discrimination. Some of the most important laws that relate to age discrimination on the federal level are the Age Discrimination in Employment Act of 1967 (ADEA), the Age Discrimination Act of 1975, and the Americans with Disabilities Act of 1990 (ADA). These laws, combined with many state laws, make it illegal to discriminate based on age or disability.

The ADEA, which is enforced by the EEOC, protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, discharge, promotion, compensation, or privileges of employment. It applies to employers with 20 or more employees, including state and local governments, employment agencies and labor organizations, as well as to the federal government. ADEA protections include: apprenticeship programs, job notices and advertisements, pre-employment inquiries, and benefits. Employers may ask employees to waive their ADEA rights, but may only do so if the waiver is knowing and voluntary.

The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs and activities that receive federal financial assistance. The Act, which is enforced by the Civil Rights Center, permits the use of some age distinctions and factors other than age that meet certain requirements.

The ADA was passed in 1990 to more fully protect approximately 43 million Americans with one or more physical or mental disabilities. The statute provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. The ADA often overlaps with age discrimination because many seniors suffer from a covered disability and may be able to bring multiple discrimination claims based on one incident.

These laws are powerful tools that can be used to help protect against discrimination in the work place. While it is important to stand up for your right to a discrimination-free work place, filing a discrimination claim against a current, former or potential employer can be a difficult decision to make. If you believe you or someone you know has suffered from age discrimination in the work place, please contact an employment attorney.

For more information about discrimination based on age or disability, visit the following links:

-    AARP

-    Administration on Aging

-    Americans with Disabilities Act of 1990

-    Employment Discrimination Law

-    Equal Employment Opportunity

-    How to File a Charge of Employment Discrimination

-    National Legal Resource Center: Age Discrimination

-    State Age Discrimination Laws

-    U.S. Equal Employment Opportunity Commission

-    Workforce 50

Please feel free to email Eric Einhart at or post any comments or concerns you may have.

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