what is age discrimination

What Is Age Discrimination?

By Thomas McKinney

Age discrimination in the workplace and in everyday life is a pervasive problem. Even offhand or what may have been intended or perceived as harmless comments can end up having significant adverse impacts on a person’s life and career. When the negative treatment of a person due to his or her age is connected to unfavorable treatment in the workplace, it is likely that age discrimination has occurred and the employee who has been subject to such discrimination has legal recourse as age is a protected class under the law.

What Is Age Discrimination?

In general, age discrimination is said to have occurred when an employee is treated unfavorably based on age as opposed to job skill, merit, or capability. More specifically, the Age Discrimination in Employment Act (ADEA), prevents those who are age 40 or older from age discrimination. While some states have laws that protect younger workers from age discrimination, the ADEA provides no such protection. It should be noted that it is not illegal for an employer to favor an older employee over a younger employee. This is true regardless of whether both workers are 40 or older. Age discrimination can occur, however, even when both the victim of the discrimination as well as the perpetrator of the discriminatory act are 40 or older.

Age discrimination can occur before employment or during employment. The discriminatory act can relate to any aspect of employment. This includes:

  • Job postings
  • Job descriptions
  • Interviews
  • Hiring
  • Salary and wage offers
  • Job assignments
  • Training opportunities
  • Promotions
  • Raises
  • Benefits
  • Performance management
  • Performance evaluation
  • Demotions and disciplinary actions
  • Layoffs
  • Termination of employment
  • Any other term or condition of employment

Age discrimination can be difficult to identify and, therefore, also make it difficult to address. Basically, employment decisions based on age alone are going to be problematic, not to mention that they are also likely to prove downright illegal under the ADEA. When job opportunities are being offered solely to younger employees, younger employees are receiving benefits that trump those of older employees in scope and amount, or older employees are being refused promotions or salary raises, then it is likely that you have age discrimination in the workplace. 

Also, a rather common form of age discrimination comes in the form of forced retirement. While employers are permitted to offer retirement packages to employees, particularly if there are pressing business needs that necessitate such offers, proper protocol must be followed. Retirement packages cannot be offered solely to older employees. These packages cannot be singled out for older workers in the absence of any other reasonably justifiable reason or they risk running afoul of age discrimination laws.

In addition to age discrimination, harassment based on age is also not legally permissible. While teasing or making offhand comments in isolated incidents may not rise to the level of harassment, continually spouting off offensive remarks about a person’s age can be considered harassment when they are made so frequently that it creates a hostile work environment or results in an adverse employment action. Really anyone in the workplace can be the perpetrator of such a harassment. Managers, supervisors, coworkers, and clients can all be held legally accountable for age harassment.

New Jersey Employment Law Attorneys

Have you or someone you know been the victim of age discrimination or harassment in the workplace? Do not hesitate to contact the dedicated employment law team at Castronovo & McKinney. We are here to help. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.