What employers need to know about age discrimination at work

What is a hostile work environment under the Age Discrimination in Employment Act?

A hostile work environment, as envisioned by the ADEA, is one in which an employee is enduring unwelcome, frequent, and offensive behavior related to their age.

Hostile work environment claims under the ADEA are quite common. These claims can vary from jurisdiction to jurisdiction, but they often require an employee to provide enough evidence to show, among other things, the following:

• The employee was subjected to discriminatory, age-related verbal or physical conduct while at work
• The conduct was unwelcomed by the employee
• The conduct was severe and pervasive enough to alter the conditions of employment and create an abusive working environment

Some examples of this offensive conduct may include:

• Mocking, insulting, or ridiculing a person because of their age
• Making jokes at the person's expense
• Generating or perpetuating stereotypes about a person's age
• Calling attention to limitations or abilities

Courts will often look at all the circumstances when assessing whether an employee is the victim of a hostile work environment, which means they may examine:

• The frequency of age-related discriminatory and harassing conduct
• The severity of the conduct
• Whether the conduct is threatening or humiliating
• Whether the conduct interferes with the employee's work

The more severe and frequent the offensive conduct, the more likely the employee will have a claim against their employer for a hostile work environment. However, proving a case is often easier said than done. There are several basic requirements of what an employee must be able to show to establish an ADEA claim.

How is an age discrimination claim proven?

An age discrimination claim must show that an employee performed their work well enough to suit their position, that the employer took an adverse action against that employee, and the employer’s action was due to the employee’s age. Now, that description makes it sound cut-and-dried, but it is often not. It can be difficult to prove discriminatory practices in the workplace — and age discrimination is no exception.

For example, if a 50-year-old employee loses their job after a conflict with their boss, they can't simply claim they're being targeted for their age. However, if that employee or a witness can provide clear evidence indicating the employer is biased against their age and treating them differently than other employees because of it, the employee may have a discrimination claim under ADEA.

But what would this claim look like? For starters, the employee would need to make a "prima facie" case that they are the victim of age discrimination. This term is a fancy way of saying they can provide enough evidence that, unless rebutted, would be sufficient to prove their case.

Which elements are considered in an ADEA claim?

While the specific elements of an age discrimination claim can vary from place to place, they typically look something like this:

• The employee is at least 40 years old
• The employee's work is good enough to meet their employer's legitimate expectations — that is, the employee is qualified for the position
• The employer took an adverse action against the employee — such as they fired the employee
• The employer's choice to fire the employee was because of the employee's age

If the employee can prove these elements, then the burden shifts to the employer, who then has the opportunity to provide a legitimate, non-discriminatory reason for firing the employee. For example, the employer may allege that they fired the employee because the employee was stealing money from the company, lying on timesheets, or other reasons unrelated to age.

If the employer can provide a legitimate, non-discriminatory reason for terminating an employee's employment, the burden then shifts back to the employee to prove that the reason offered was not the actual reason but merely a pretext for age discrimination.

In addition to providing a legitimate, non-discriminatory reason for their actions, it's worth noting another possible defense an employer may have to an employee's ADEA claim: the bona fide occupational qualification (BFOQ) defense.

Essentially, the BFOQ defense asserts that an employee's age is a qualification reasonably required for the normal operation of the employer's business. In most cases, it involves an employer-mandated age limitation, which employers most commonly enforce when necessary for safety reasons, such as mandatory retirement ages for pilots.

Defend your company against an age discrimination claim

The information above barely scratches the surface of what employers need to know about age discrimination laws and how to protect themselves against ADEA claims. Not only are there many other vital nuances and claims associated with the ADEA, but several state laws protect employees from discrimination based on an individual’s age — including for younger workers, not just those over 40 years of age. For instance, New York has outlawed age discrimination against anyone older than 18.

It’s crucial for employers to stay up to date on relevant age discrimination laws and to know how to defend an age discrimination claim. ADEA claims can have serious risks and consequences for an organization, such as reputational harm, costly financial settlements, and loss of talent. 

Access the Practical Law checklist on how to defend an age discrimination claim. It discusses covered employers and protected persons, exhaustion of remedies, liability theories and defenses, and limitation of damages. If you don’t have Practical Law, try it for free today and stay in the know with expert guidance at your fingertips.