Age Harassment and Discrimination in the Workplace

The Age Discrimination in Employment Act (ADEA) protects employees and job applicants who are 40 years of age or older from harassment and discrimination due to age.

This means that employers may not:
 

• Refuse to interview, hire, recruit or promote individuals due to their age.
• Refuse to hire applicants or promote employees because of their age.
• Give preferential treatment to younger employees when hiring or giving promotions or job assignments.
• Impose different work requirements on employees based on age.
• Discriminate based on age in any other employment decision.

Although, some state and local governments protect younger employees, federal law does not protect employees who are under 40 years old. It’s LEGAL to favor older workers over younger ones even if both workers are over 40 years old. Organization-wide policies that apply to all employees, regardless of age, can be illegal if they have a disproportionally negative impact on employees older than 40.

It’s illegal for employers to advertise age preferences or limits when posting job notices or advertising for prospective employees. It’s unlawful to discriminate based on age in apprenticeship programs with some small exceptions under the ADEA. Employers should only ask about age in pre-employment inquiries if there is a legitimate business reason for asking. If age is a bone fide occupational qualification, then age restrictions are allowed by law.  For example, policemen and firemen are often required to retire at a certain age due to genuine safety concerns.

Executives and other employees who have high policy making jobs can be forced into retirement if they receive a minimum of $44,000 annually in their pension plan. Employees who are physically unable to do their job are not covered by age discrimination laws. 

The Older Workers Benefit Protection Act of 1990 (OWBPA) prohibits employers from denying benefits based on age. This amendment to the ADEA, addresses the substantial cost of providing some benefits to older employees and ensures that employees over 40 years of age are not denied the same benefits offered to younger employees. Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.

Hostile Environment Harassment

Hostile Environment Harassment occurs when the behavior is so frequent or severe that it creates a hostile work environment. Isolated off-hand remarks and teasing about age are not generally considered illegal if they aren’t very serious.  However, if the remarks are frequent and offensive, they will often rise to the level of illegal harassment. If the harassment involves an adverse employment decision taken against the victim (such as demotion), then it becomes illegal immediately.

Harassment can be perpetrated by a supervisor, co-worker, or from a non-employee such as a customer or contractor. The best practice is to avoid age related-remarks, teasing, and jokes and make decisions based on job-related facts only

Retaliation

It is illegal to retaliate against an employee for filing or participating in a harassment or discrimination claim.

This means employees are protected from reprisals for:
 

• Filing a harassment or discrimination claim.
• Testifying, assisting, or participating in a harassment or discrimination investigation.
• Or Opposing harassment or discrimination in any manner.|

In Conclusion

Harassment or discrimination of employees who are 40 years of age or older based on age is illegal and not tolerated in the workplace. Employees who violate the law are subject to disciplinary action up to and including termination. Employers who violate the law could face litigation in civil court and fines from the EEO. All workers deserve a safe, comfortable place to work.  It’s up to everyone to follow the law and treat all persons in the workplace with dignity and respect.

TrainingABC has a new video on age harassment and discrimination in the workplace.