The federal Age Discrimination in Employment Act (ADEA), enacted in 1967, prohibits employers with 20 or more full-time workers from discriminating against anyone 40 and older. The actions covered by the ADEA are broad, and include hiring, firing, layoffs, compensation, promotion, benefits and training. It also bars harassment based on age, as well as mandatory retirement ages, with some exceptions – such as commercial pilots and public safety employees.


Despite the fact that the ADEA has been in force for 50 years, age-based discrimination and harassment are still far too prevalent in this country. At a recent public meeting on the issue held by the Equal Employment Opportunity Commission, experts discussed how “age discrimination and stereotypes about older workers continue to channel older workers out of the workforce, limiting further economic growth.”

During the meeting, speakers pointed to a survey conducted this year by the American Association of Retired Persons (AARP) that revealed almost two-thirds of workers aged 55-64 believe their age has been a barrier to finding work. They also discussed a 2015 study from the National Bureau of Economic Research Disability Research Center that found rampant hiring discrimination against older workers.

Busting Myths about Older Workers

One of the main reasons that age discrimination happens is that employers believe, wrongly, in stereotypes about older workers. They may feel employees in their late 40s will start to lose their edge as they get older. Some might believe older workers are more likely to be resistant to change and less able to adapt to new technology than employees in their 20s or 30s.

Recent research, however, refutes all of this. The 2010 international COGITO study, for example, revealed that older workers are actually more productive than their younger counterparts. Their productivity is also more consistent over time, as is their cognitive performance. The study’s authors found older workers were able to draw on years of experience to solve problems. They were also better motivated than young adults, more stable and less erratic.

A 2013 study commissioned by the Social Security Administration backs up the COGITO research. It looked at whether the aging U.S. workforce is harming overall productivity. The answer? Not in the slightest. In fact, the study found no evidence that older workers are in any way a drag on productivity. Their higher earning potentials actually boost national average compensation rates.

Main Types of Age-Related Discrimination and Harassment

Given all of that hard data, there is no reason employers should be hesitant to hire, promote and retain older workers. Not doing so is discrimination, plain and simple.

Some of the main ways in which employers may discriminate against older workers include:

  • Job ads that stipulate a preference for younger applicants.
  • Weeding out online resumes from older workers using algorithms that reject applicants over a certain age.
  • Asking an applicant or employee his or her age when it is not necessary.
  • Limiting benefits to employees in a certain age bracket.
  • Awarding promotions or bonuses based on tenure not performance.
  • Mandatory retirement age clauses in employment agreements.
  • Overlooking older workers for training and other employee-development programs.
  • If layoffs are pending, putting pressure on older employees to take early retirement in order to spare the jobs of younger workers.

Age discrimination is still a serious problem in the United States. There are laws on the books, including the federal ADEA, that prohibit these practices and call for a level playing field for all workers, regardless of their ages. Employers must ensure they are following those laws and regulations.

If you feel you have been denied a job or promotion because of how old you are, or have experienced other age-based discrimination, the lawyers in the Sommers Schwartz Employment Litigation Group would be happy to discuss your situation. Please get in touch.