During the serious recession of the past few years, a number of stories surfaced regarding the additional hardship faced by many “older” workers. After being laid off, these older workers were typically unemployed longer and had more difficulty finding new employment, and the trend continues today. Numerous studies have found that unemployed workers over 55 spent 48.1 weeks unemployed, compared to an average of 28.5 weeks for those under 55. Age discrimination in employment is wrong and should not be tolerated.
In response to the plight of older workers, an abundance of articles have been published that seek to help the older worker overcome age discrimination and find employment. The tone of many articles couches age and experience as obstacles to be overcome by the older worker and many of them implicitly accept the same stereotypes (e.g. older workers are slow and technologically inept) that employer’s hold.
Age Discrimination in Employment is Not Okay
These articles, and society generally, fail to truly emphasize the strengths that age and experience bring to a workforce. The New York Times recently published this op-ed on the issue generally. The articles likewise fail to place any responsibility on prospective employers. In addition to it being a moral obligation, New York state human rights laws and federal law explicitly prohibit employers from discriminating against employees or prospective employees based on the employee’s age. The federal Age Discrimination in Employment Act (ADEA) applies to employers with 20 employees or more that discriminate against employees because the employee is over 40 years old. New York’s laws protect employees 18 or older from discrimination based on age when the employer has more than 4 employees.
Age Discrimination Takes Many Forms
Not hiring an employee solely based on their age is a common form of age discrimination, but it’s not the only form. Age discrimination occurs anytime an adverse job decision or action is taken solely based on the employee’s age. Some common examples of workplace occurrences that may constitute discrimination include being passed over by a promotion that is given to a younger, less qualified worker; being fired after hearing supervisors make derogatory comments about your age; and being demoted because of your age.
The only time an employer is permitted to discriminate based on an employee’s age is if the job objectively requires that the employee is a certain age. These situations are exceedingly rare – for example, an employer hiring an actor to play a grandmother could legally discriminate based on age. In contrast, an employer hiring a manual laborer cannot legally fail to hire an employee based on their age because a certain age is not absolutely required for the job. If an older prospective employee is capable of performing the required job duties, they must be considered on equal footing with a younger prospective employee.
Addressing Age Discrimination at Your Job
So, what is the best way to deal with age discrimination in employment? Don’t. Don’t accept it as a natural part of being a worker over the age of 40. If you think you’ve been treated differently by a current or prospective employer because of your age, contact the experienced employment law attorneys at Joseph & Norinsberg at (212) JUSTICE or by e-mail at [email protected] today to discuss your legal options.