What is ADEA?

The Age Discrimination in Employment Act protects older people so they can’t be discriminated against in the workplace based on their birth date. 

The rules make it illegal for an employer to refuse to hire someone or remove an existing employee based solely on their age. The Act also prohibits employers from making other employment decisions based on age, such as awarding promotions.

As well as being specific, the Act contains a ‘catch-all’ provision that states it’s unlawful to discriminate against individuals because of their age ‘in any aspect of employment.’

The ADEA specifically references employees aged forty years or older, but many states have their own laws that apply to younger employees.

Age discrimination doesn’t always manifest in actions like firing someone or passing them over for promotion. It’s also possible to bring an age harassment claim under the ADEA.

Sometimes, also called hostile work environment claims, age harassment occurs when an employee is subject to discriminatory behavior in the workplace based on their age; this can be physical or verbal.

An employee must be able to evidence the behavior – usually witnessed by other staff – and maintain that it was unwelcome. The conduct must be bad enough to alter the working environment and make it abusive.

Each case is viewed on its merits, but some obvious examples are teasing or mocking someone about their age, highlighting age-related limitations, or creating stereotypes about someone’s age.

The frequency of the employer’s behavior is relevant to a potential claim – plus, how severe it is. Another factor a Court will consider is whether the employee felt humiliated or threatened by their employer sufficient to interfere with their work.

Proving a hostile work environment will be different in every case, but, in simple terms, the more often the behavior occurs and the more unpleasant and noticeable it is, the easier it is to support a claim under the Act.

Age discrimination claims must be clear-cut and robust, not ambiguous. A claimant must establish a ‘prima facie’ case demonstrating they’ve been the victim of age discrimination.

Every case under the ADEA is unique, but many common elements exist. Mostly, claimants are aged over forty. 

The claim must demonstrate a hostile action on the employer’s behalf, such as firing the claimant or clearly passing over them for promotion, maybe on more than one occasion. 

The hostile act must have occurred due to the claimant’s age rather than other grounds like poor performance or activities that breach employment terms and conditions.

If a claimant demonstrates a prima facie case, what is called the burden of proof shifts to the employer, who must dispute the claim by providing a legitimate, non-discriminatory reason for their actions.

Age discrimination or harassment in the workplace doesn’t have to be overt. Unconscious bias based on age falls under the ADEA but is much harder to prove.

It’s also possible to bring a claim of age discrimination at the recruitment stage. Known as fair chance hiring, there is also protection in this scenario from the Fair Chance Act 2019.

Many employers operate a blind recruitment policy, removing personal details at the hiring stage, reducing the risk of being accused of age-related bias. In this case, it’s almost impossible for a candidate to allege age discrimination successfully.

An employer can put forward many different and valid reasons to rebut a discrimination claim under the ADEA.

Some common defenses include repeated and demonstrable poor work performance; there must be evidence of formal written warnings to sustain this defense.

Other defenses include fraud, theft, or violent or inappropriate behavior against other staff members. A paper trail that supports a timeline of investigations, meetings, and warnings makes this much easier for an employer to prove.

Another defense open to the employer is the BFOQ or Bona Fide Occupational Qualification defense, where there’s a clear correlation between the employee’s age and the nature of their work.

To rely on this defense, the employer should have a recruitment policy that clarifies that the work or role is age-limited. There should be evidence that the employee was aware of this and signed a contract containing this at the hiring stage.