It is no secret: America's workforce is aging. The increase in older people working has been followed by an increase in age discrimination. Employers may be liable for age discrimination if conduct or decisions in the workplace show a bias against people 40 years or older.
At The Workplace Counsel, our employment law lawyers based in Denver are dedicated to helping employers who are dealing with claims of age discrimination in the workplace. Through fact-finding, discovery, strategic pleadings, and negotiations, our employment law attorneys succeed where others may fail. If one of your employees has claimed that he/she was discriminated against based on age, contact us at 303-625-6400 to schedule a consultation and to learn more about any legal options available to you.
What Constitutes Age Discrimination?
Age discrimination occurs when a person receives unfair treatment due to their age as an employee or as a job applicant. The Age Discrimination in Employment Act (ADEA) is a federal law designed to protect persons who are 40 years of age or older. 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 employer's age does not matter. What matters is that the victim is 40 years old or older and has suffered discrimination based on age.
Are all Employers Subject to the ADEA?
Most employers are subject to the federal ADEA, including:
- Companies with 20 or more employees
- Employment agencies
- Local government employers
- State government employers
- Federal government employers
- Labor organizations
In Colorado, all employers, regardless of size, are governed by the Colorado Anti-Discrimination Act (CADA), which protects against employee discrimination based on age.
What If a Younger Worker is Discriminated Based on their Age?
Federal and state law only protects workers over the age of 40. Some states, however, have enacted laws to protect workers who are younger than 40 years of age. Colorado does not.
Examples of Age Discrimination
Age discrimination can take different forms. Sometimes the discrimination is overt, while other times it is disguised as something else. The following are some examples of age discrimination:
Comments, Jokes, or Insults Regarding Age
Management and co-workers may demean older workers when they make age-related comments, like “Ok, Boomer!” These types of comments, if consistent and regular, can create a hostile work environment that could be considered harassment.
“Ok, Boomer!” however, is not enough on its own. The comments, jokes, and insults must be pervasive and severe to be discriminatory.
Loss of Promotion Due to Age
Often what happens when age discrimination is at play is a younger, less qualified employee will get a promotion. Meanwhile, the more qualified but older employer is passed over for the promotion.
Hiring Only Younger Workers
Age discrimination can take place even during the hiring process. When a company has a record of hiring only young employees, it may be evidence of discrimination.
Employers in Colorado cannot discourage employees from discussing their salaries. When certain people are getting raises or promotions and others are not, it can breed distrust. If you have workers in the same role with similar experience but some are paid more, it could indicate discrimination. Look at pay scales and compare age, race, religion, and gender for all employees in the same roles to make sure employees are being paid equally.
Unjust Disciplinary Action
Unfair criticism or discipline (like demotion or pay cuts) may indicate a supervisor is trying to create a paper trail to disguise any age-based discrimination.
Advertising Specifically Geared for Younger Workers
Companies cannot use advertisements to discriminate. Advertisements must be free from a preference for younger employees or an avoidance of older employees.
How Is Age Discrimination Proven?
To have a prima facie case of age discrimination, an employee must establish that:
- They are 40 years old or older (or the protected age class as defined by state statute)
- Their job performance is satisfactory
- Adverse job action was taken against them (e.g., termination, demotion, or a pay cut)
- A similarly situated and substantially younger employee was treated more favorably (but this does not mean that the “substantially younger” employee must be under the age of 40 –– for example, the victim-employee might be 70 years old while the substantially younger employee is 42)
But, proving the case does not end by satisfying these four elements. The employer may challenge any legal action and claim that there was a legitimate, nondiscriminatory reason for the decision. In this scenario, the employee must then prove that the employer's proffered reason is simply a pretext and that age discrimination remains the real reason.
Proving age discrimination can also be found in patterns. If an employer has a pattern of hiring only younger people, promoting only younger people, and making jokes about older people, then this can be used to prove discrimination. Often, these types of cases can require considerable discovery and witness testimony.
What Should Employers Do to Prevent Age Discrimination?
Employers must take precautionary measures to prevent age discrimination. Some of the policies and procedures that can be put into place are listed below.
All employees, even those in positions of leadership, can benefit from training on what age-based discrimination is and how to avoid it. Without this type of training, employees may participate in age-based discrimination and not even be aware of what they are doing. Proper training should include examples of age-based discrimination and alternative ways to approach situations.
It is important, also, that employees learn how to work with people from different backgrounds, including different races and religions along with different ages.
Performance-Based Reward System
Employee rewards should be based on the actual work of employees and in a way that is able to be easily measured. When rewards are determined based on arbitrary measures, it is easy for there to be allegations of discrimination, even if decisions are unintentional. Also, if an employer is accused of age discrimination, being able to show that the rewards are based on an actual, measurable performance-based system will help to show that they are not being discriminatory.
Review and Implement Policies to Avoid Age Discrimination at All Stages
Employers should implement policies that serve as a way to ensure discrimination does not occur. These policies should address all stages of employment, from advertising for employees to lay-offs. This policy should be clearly explained. Discipline should be taken for policy violations.
Examples of policies employers can implement include:
- Remove employee date of births from any documentation where it is not required
- Hold all employees to the same standards and discipline all in the same way
- If forced to lay off employees, do not base termination decisions on employees' ages
- Provide training on an annual basis
- Make it clear that employees can report any discrimination without fear of retaliation
- Create mentorship programs for new employees and those with tenure to build bonds and promote mutual respect
There may be other state-specific precautions that employers should consider.
Contact an Employment Law Attorney Today
Age discrimination in the workplace is real and causes harm both to the victim and society. Making sure employers are compliant is our job. At The Workplace Counsel, our employment law attorneys in Denver provide employer training and assist our clients in investigating age discrimination complaints and defending legal claims. Contact us today by using our online form or calling us at 303-625-6400 to schedule a consultation.