Workers in the U.S. are getting older. This isn’t a surprise, since the population is aging. However, the shift has been dramatic, with a 117% increase in workers aged 65 and over between 1994 and 2014.
An older workforce may usher in new challenges. And one of them could be an increase in age discrimination. Age discrimination involves discriminating in any aspect of employment against someone who is 40 or older. It can cost workers opportunities or leave them coping with emotional and financial stress.
For many workers, however, it’s challenging to know when behaviors cross the line into unlawful discrimination — and what they can do about it if it does. Let’s say, for example, that Stewart is 56 and he’s working in marketing at a popular software company. Unfortunately, his young new manager has begun routinely making what feels like rude comments about Stewart’s age.
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Stewart feels uncomfortable and worries about his job prospects under a manager who values youth over experience. But he isn’t sure whether to let the manager’s actions go or take action. Here’s what employment law experts had to say.
Stewart should start documenting the comments
While Stewart has a few options, one thing is clear: He shouldn’t ignore his manager’s inappropriate comments.
“It’s very important you don’t dismiss what’s happening, even if the comments or jokes seem subtle,” Anthony Michel, an employment law attorney at Michel, Allen, & Sinor, told Moneywise. “The federal Age Discrimination in Employment Act (ADEA) protects employees who are 40 or older from discrimination because of their age.”
However, Michel said that simply hearing comments alone won’t always give rise to a legal claim.
“The comments need to be connected to an adverse employment decision or form part of a pattern of age-based treatment,” he explained.
Stewart will have to prove that a pattern exists, so he should start laying the groundwork immediately.
“If you are in your 50s and your young boss has been making subtle digs about your age, the most important thing is to document it,” Sam Almon, an employment lawyer and partner at Makarem & Associates, told Moneywise.
Almon suggested that Stewart “keep copies of any texts or emails, and for spoken comments, keep notes of what [was] said, when it was said, and who witnessed it.” That’s because “it is easy for a manager to laugh off subtle comments as just a joke, or no big deal.” Documenting communications, however, makes it easier to establish a pattern.
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Report the comments to human resources
Once Stewart has a record of his boss’ comments, the next step should be to seek help within the company to stop the behavior.
“Report the comments in writing to human resources, or to your boss’s supervisor, and clearly state you believe you are being treated differently because of your age,” Almon advised. “A good-faith report of age discrimination protects you from retaliation, and a written report using the term ‘age discrimination; makes it harder for the employer to dispute that you made a protected complaint.”
While Stewart may worry about what complaining will do to his career, he shouldn’t. The law is on his side.
“The number one reason that employees do not complain is that they fear retaliation,” explained Rafael Lázaro, founder at Lázaro Law Group. “But once you complain, the law provides you with protection, because they cannot fire you based on that complaint. And importantly, if you never complain, your employer can later argue that it had a procedure for complaints and you never used it.”
Consider pursuing a civil claim
If HR doesn’t take action, Stewart may have a right to pursue a civil claim to recover damages. However, whether he can do so depends on whether he suffered actual harm.
“Do you have any legal recourse? It’s case-specific and depends on the severity and frequency of the comments, but often yes,” Almon said. “If you’re terminated, demoted, or subjected to some other negative action at work, your record of the comments may help show a discriminatory motive. And if you’re terminated after making a complaint of age discrimination, you may have a claim for unlawful retaliation.”
An employment law attorney can help Stewart to navigate the legal system, and he should get that help if he needs it. His career and happiness may be on the line.
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Christy Bieber has 15 years of experience as a personal finance and legal writer. She has written for many publications including Forbes, Kilplinger, CNN, WSJ, Credit Karma, Insurify and more.
