All about age discrimination at work and why successful lawsuits are rare

In many countries it is illegal to discriminate against workers on the basis of age. However, legal experts say such unfair treatment, especially of older workers, is widespread. With an increasingly aging workforce, economically developed societies are increasingly concerned about age discrimination.

1. What is age discrimination?

Age discrimination is when someone is disadvantaged or treated unfairly because of their age. Young and old alike can face it. In the United States, the federal Age Discrimination in Employment Act (ADEA) of 1967 applies only to those 40 and older, although some state laws cover young people. ADEA protects job applicants and employees from discrimination in hiring, promotion, termination, compensation, and terms, conditions, or privileges of employment. The UK’s Equality Act 2010 covers both direct discrimination (when employees are treated differently from others because of their age) and indirect discrimination (when work policies or procedures disadvantage age groups). It also includes harassment – shaming, offending or demeaning someone based on their age – and victimization – abusing someone for accusations of age discrimination.

Polls show that ageism is widespread in the workplace and appears to be particularly prevalent in the tech and financial industries. In a 2018 AARP survey, 61 percent of workers 45 and older reported seeing or experiencing the condition. A study published the same year by the Urban Institute and ProPublica found that 56 percent of workers 50 or older were kicked out of long-term jobs before opting to retire. Research shows that discrimination against older job applicants is widespread. When researchers presented employers with fictitious resumes designed to be as identical as possible except for age, older applicants received fewer calls back than younger applicants.

3. Is it gender and race?

Yes. In a study using fictitious resumes, researchers found that older women experienced greater discrimination and started earlier than older men. In the AARP poll, disproportionately high proportions of women and black workers (64% and 75%, respectively) reported witnessing or experiencing age discrimination. Discrimination complaints involving menopause are on the rise in the UK, with more older women preparing to challenge companies that fail to recognise their health needs.

4. How common are lawsuits?

In 2020, more than 14,000 age discrimination claims were filed in the UK Employment Tribunals, which hear legal disputes over labour law. Some include additional complaints, such as complaints about disability. According to the Justice Department, that number was elevated by the pandemic, which has resulted in a large number of older workers leaving the workforce, some involuntarily, earlier than expected. In the United States, approximately 13,000 complaints were filed under ADEA in 2021; these figures do not include cases filed under state law. Legal experts say the number of complaints is only a fraction of the actual incident.

5. Why are there fewer lawsuits?

On the one hand, many cases are settled out of court, mostly by paying severance packages to long-term employees who have been laid off, lawyers said. In other cases, employees may be unaware of their rights or intimidated from filing lawsuits. Job seekers may have no evidence that they were rejected because of their age.

6. Is age discrimination legally justified?

Yes. In the UK, age is different from gender and race, and the law allows employers to discriminate on the basis of age if they can justify their actions, such as for health and safety or health reasons. For example, UK-registered pilots are forced to retire from flying at 65, although a mandatory retirement age is generally not allowed. In the U.S., ADEA provides similar exemptions from mandatory retirement bans and exceptions for certain employees in executive positions.

7. How difficult is it to file a lawsuit?

Like any other discrimination case, age discrimination lawsuits can be difficult to win. In employment courts in England and Wales, the success rate for such cases in 2021 is about 2%, according to data compiled by law firm GQ Littler. In the United States, as a result of a 2009 Supreme Court ruling, it is necessary to demonstrate that age is a determining factor in an employer’s behavior. Legislation passed by Congress in 2021 would determine enough to justify age as a motivating factor, as in race and sex discrimination lawsuits.

8. How much can you be awarded in a case?

UK Employment Tribunal rulings for unfair dismissal are usually capped at just over £93,000 ($112,430). But if discrimination is proven, the cap does not apply and damages are unlimited. A Citigroup Inc. banker fired after being called ‘old’ at 55 won an age discrimination lawsuit in 2020 and received nearly £2.7 million in damages despite Citigroup A successful appeal in July asked for the case to be reconsidered. The largest ADEA resolution to date is a lawsuit brought against the California Public Employees Retirement System (California’s state employee pension plan) by 1,700 disabled police officers, firefighters and other safety officials whose disability benefits are based on their age at the time of employment, according to the Equal Employment Opportunity Commission, a government agency that enforces federal laws against discrimination in the workplace. Pension managers agreed to pay $250 million in 2003 to settle the case.

9. How relevant is the ageing workforce?

It is estimated that by 2030, about a quarter of workers in developed countries will be over the age of 55. Labour experts argue that to ensure future vacancies are filled, employers need to reduce bias against this group.

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