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Sanford Heisler Sharp LLP | 20th Anniversary 2004 - 2024

Confronting Age Discrimination in America

by | April 23, 2019 | Age Discrimination

Americans are growing older. According to the U.S. Census Bureau, the current median age for an American is 38, and it is expected to rise to 40 by 2030.[1] In other words, by 2030 the number of Americans who are 40 and above will equal the number of Americans who are younger than 40.

At the same time, Americans are working longer and retiring later in life. As a result, the labor force—both those working and actively looking for work—is increasingly composed of older Americans. According to the U.S. Bureau of Labor Statistics, by 2024, one-quarter of the labor force will be age 55 or older.[2]

Unfortunately, older Americans are learning that their increased presence in the workforce is not seen by everyone as a positive.

The AARP has repeatedly surveyed workers regarding age discrimination. In two separate surveys from 2013 and 2017, over 60% of workers above the age of 44 reported having seen or experienced age discrimination.[3]

In a recent study of age discrimination, three economists created fictitious resumes and submitted them to over 13,000 job openings.[4] For each position, the economists submitted three resumes, varying only in the age of the fictitious applicant; one for a young worker (age 29-31), one for a middle-aged worker (age 49-51, and one for an older worker (age 64-66).

The study’s bottom-line conclusion was unambiguous; employers are discriminating against older workers. Compared to younger applicants, the applications for the older workers resulted in fewer callbacks. The results were especially stark for older female workers. For example, older female applicants for administrative jobs received 47% fewer callbacks than young applicants. For sales positions, older female applicants received 36% fewer callbacks than young applicants.

The U.S. and state governments have given older workers tools to fight back against age discrimination. In 1967, the federal government passed the Age Discrimination in Employment Act (ADEA) “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. § 621(b). The ADEA protects older workers from age discrimination, including wrongful terminations, failures to hire, and discriminatory work conditions. “The ADEA commands that employers are to evaluate [older] employees . . . on their merits and not their age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993).

Similarly, most states protect employees against age discrimination, and in some cases, they provide greater protection than the ADEA. For example, an individual must be at least 40 years old to be covered by the ADEA, and courts have rejected claims based on age discrimination experienced by 39-year-olds. One court suggested that the baseline is “because alleged mistreatment of individuals who are younger than 40 is presumed not to have been committed on the basis of age.” Keister v. PPL Corp., 318 F.R.D. 247, 261 (M.D. Pa. 2015). However, age discrimination can occur before one turns the magical age of forty,[5] and some states have rejected this baseline. See, e.g. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 n.3 (2d Cir. 2001) (“[T]he employment provisions of the [New York state discrimination law] apply to all employees over the age of eighteen. . . , and the employment provisions of the [New York city discrimination law] do not have any specific age limitation”); Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004) (“The [New Jersey state discrimination law] . . . makes age discrimination unlawful but does not limit its protections to persons at least 40 years of age.”)

Whether you are 35, 55 or 75, you should not have to suffer from age discrimination in the workplace. If you have experienced ageism, you should consult with an attorney to determine whether to bring a lawsuit. Sanford Heisler Sharp has experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.


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