Guide to Laws Preventing Age Discrimination

As the American population ages, many individuals are now postponing retirement for much longer than previous generations. Some of the reasons for remaining in the workforce later in life include financial insecurity, access to employer-sponsored health plans, and simply wanting to stay active and engaged. One of the consequences of this shift is that older Americans are facing age discrimination in the workplace in much larger numbers.

Below, we will go over a few signs that you may have been the victim of age discrimination in the workplace, the sources of laws that prohibit age discrimination, and what you must prove in order to prevail on a claim of age discrimination

What is Age Discrimination?

It is normal, even desirable, for employers of every variety to want employees who are the “best and brightest” at what they do, because these workers are most likely to do well on the job. Unfortunately, many conflate “best and brightest” with “young,” which is not always the case. As such, older workers often face difficulties seeking and sustaining employment due to the mistaken belief that they are not as sharp as their younger counterparts, or that they will be harder to train.

Occasionally, the headwinds that older employees face can become outright discrimination. Age discrimination in the workplace is any adverse treatment of an employee based on the employee’s age. It can occur at any stage of the employment process — from deciding which candidates to hire, which employees to promote, and which employees to terminate. A few behaviors that could be considered to be age discrimination include:

• Harassment and biased comments from co-workers or management
• Being disciplined more often or more severely for infractions than younger colleagues
• Being passed over for promotions in favor of younger, less qualified colleagues
• Being denied training and advancement opportunities that are afforded to younger colleagues
• Being fired and rapidly replaced with a younger, less qualified employee
• Being fired first in a round of layoffs
• Being assigned to unpleasant duties
• Suddenly receiving negative performance reviews not accompanied by a change in work quality

Speak with a Maryland age discrimination attorney if you feel that you have been discriminated against because of your age in the workplace.

Age discrimination is also disturbingly common. In 2017, the Equal Employment Opportunity Commission (EEOC) received 18,376 complaints. The AARP also found that 64% of workers say they have seen or experienced age discrimination in the workplace. Over half (54%) said that they believe age discrimination begins for workers in their 50s.

Sources of Laws Preventing Age Discrimination

Despite its prevalence, age discrimination is illegal. There are several sources of law that prevent age discrimination in the workplace in the United States, some of them based in federal law and others based in state and local law. Below, we will examine both the federal Age Discrimination in Employment Act and the Maryland Fair Employment Practices Act.

Federal

The Age Discrimination in Employment Act of 1967 is a federal law that prohibits age discrimination at all stages of the hiring and employment process, including advertisements and job notices, apprenticeship programs, pre-employment inquiries, and the administration of benefits. The key provisions of the act prohibit employers from engaging in three main practices.

An employer may not:

1. Fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age,
2. Limit, segregate, or classify employees in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age, and
3. Reduce the wage rate of any employee in order to comply with this law.

The act also applies to labor organizations, prohibiting them from excluding or expelling members because of their age, and causing or attempting to cause an employer to discriminate against an individual because of his or her age.

The Age Discrimination in Employment Act is not unlimited in scope; it applies only to individuals aged 40 or older and only to employers with at least 20 employees. Further exceptions include:

• Taking actions otherwise prohibited when age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business
• Taking actions otherwise prohibited to observe the terms of a bona fide seniority system
• Taking actions otherwise prohibited to observe the terms of a bona fide employee benefit plan

State

As with most anti-discrimination measures, federal law merely provides a baseline of protection; each state may offer more (but not less) protection as it sees fit. To that end, residents of Maryland enjoy heightened protection from age discrimination through the Maryland Fair Employment Practices Act, which does not contain an age limitation and applies to employers with 15 or more employees. The key provisions of the statute are:

An employer may not:

1. Fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment because of the individual’s age,
2. Limit, segregate, or classify its employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual’s status as an employee because of the individual’s age,
3. Request or require genetic tests or genetic information as a condition of hiring or determining benefits, and
4. Fail or refuse to make a reasonable accommodation for the known disability of an otherwise qualified employee

Like the federal Age Discrimination in Employment Act, Maryland’s statute also applies to labor organizations by barring such organizations from excluding, expelling, or otherwise discriminating against members based on their age and attempting to cause an employer to discriminate against an individual based on his or her age.

Also similar to federal law, Maryland law includes a number of exceptions, such as:

• It does not apply to the employment of individuals outside the state of Maryland.
• It does not prohibit an employer from hiring employees on the basis of the individual’s age when age is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise.
• It does not prohibit an employer from establishing and requiring employees to adhere to a workplace appearance policy (such as grooming and dress standards).

Proving Age Discrimination

Suspecting that you have been a victim of age discrimination is different from actually proving it in a court of law, which is much more difficult, especially in federal cases since the Supreme Court’s 2009 decision in Gross v. FBL Financial Services. In that case, the Court held that a plaintiff suing an employer under the Age Discrimination in Employment Act must show that age was the “but-for” cause of the employer’s adverse decision. Before Gross, an employee merely had to show that age was a “motivating factor” in the employer’s decision, which then shifted the burden to the employer to show that age was not a motivating factor and that it would have taken the action regardless of the employee’s age.

Thus, plaintiffs in federal cases must now show by a preponderance of the evidence (i.e., “more likely than not”), that their age was the sole motivating factor behind their employer’s adverse action. To prevail, a plaintiff in a standard disparate treatment claim under the Age Discrimination in Employment Act must prove four elements:

1. He or she is over 40
2. He or she is qualified for the position in question
3. He or she suffered from an adverse employment decision, and
4. His or her replacement was sufficiently younger to permit a reasonable inference of age discrimination.

The “adverse employment decision” can including failing to hire, failing to promote, demoting, terminating, and constructively discharging the plaintiff (i.e. intentionally creating a hostile work environment to encourage the plaintiff to quit). Contact a Maryland age discrimination attorney for more information about the specifics of pursuing an age discrimination claim.

Resources for Those Experiencing Age Discrimination

There are a variety of federal and state agencies, as well as private organizations, that monitor age discrimination issues in employment. At the federal level, the EEOC administers and enforces federal civil rights laws against discrimination, including the Age Discrimination in Employment Act. In Maryland, the Maryland Commission on Civil Rights is the agency responsible for handling age discrimination claims. Several counties in the state maintain their own agencies tasked with handling discrimination claims, including Howard, Montgomery, Prince George’s, Frederick, and Baltimore. There are also several non-profit private organizations dedicated to serving the needs of aging Americans in the workplace, including the AARP and the American Society on Aging. 

Contact a Maryland Age Discrimination Attorney

This guide to age discrimination is merely a brief overview of some of the main sources of laws prohibiting age discrimination and how individuals can fight back against the practice. For more information about age discrimination, including harassment, hostile work environment, and retaliation, contact the Maryland age discrimination attorneys at the Law Firm of J.W. Stafford for a consultation. Call 410-514-6099 or contact us online as soon as possible.