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June 26, 2023 | BusinessEmployment

Age Discrimination in Employment

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Andrew Ramstad

Associate Attorney

Age discrimination affects not only the elderly but also a significant portion of the working population under federal law.  Whether you are an employer seeking to minimize age discrimination claims or if you believe you have been discriminated against on the basis of your age, it is crucial to understand the rules.

Federal Law

The Age Discrimination in Employment Act (ADEA) prohibits employers from making employment decisions based on an employee’s or applicant’s age, protecting those aged 40 or older who work for or apply to work for a company with 20 or more employees.

New York Law

New York law takes a step further in safeguarding most employees regardless of age.  Under New York State law, all employers regardless of size are prohibited from making employment decisions based on age.  Moreover, beginning on February 8, 2020, the law expanded to protect all employees age 18 and over.  New York City laws apply to employers with four or more employees, and protect all employees regardless of age.

Disparate Treatment vs Disparate Impact Claims

Age discrimination claims typically involve intentional age-based actions (disparate treatment).  Disparate treatment-based claims can arise out of many different employment circumstances, such as in the hiring or firing process, with an employee’s salary, benefits, or consideration for promotions, or even their work assignments.  Seemingly neutral actions that have a negative impact on those in the protected age group (disparate impact) can also give rise to age discrimination claims.  Lay-offs or job qualifications that disproportionately affect a certain age group, for instance, could be examples of disparate impact-based claims.

Defenses and Retaliation

In a disparate treatment claim, an age-related decision may be defensible if it is related to a job’s requirements and consistent with business necessity.  In contrast, to avoid a disparate impact claim, the employment policy or practice must be based on a reasonable factor other than age (RFOA).  To qualify as an RFOA, an employment practice must be “reasonably designed and administered to achieve a legitimate busiess purpose in light of the circumstances, including its potential harm to older workers.” Retaliation by an employer against an employee asserting rights not to be discriminated against based on age is prohibited under both federal Equal Employment Opportunity law and New York State Labor law.

Avoiding and Addressing Age Discrimination

Employers should provide appropriate training to supervisors and hiring managers to minimize potential discriminatory actions, including those based on age.  A written employee handbook outlining the company’s policies against discrimination and complaint procedures is also essential.  In case of a complaint, employers should consult legal counsel regarding the investigation and documentation of the allegations and any actions taken by the employer.

Applicants or employees who believe they have experienced age discrimination should document their claim and keep careful records of discriminatory conduct, the employer’s response to the complaint, and any retaliatory actions the employer takes against the employee.  Consult with an experienced attorney!

Photo by Amy Hirschi on Unsplash 


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