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Proving age discrimination can be difficult

On Behalf of | Jun 17, 2024 | Discrimination |

Age discrimination in the workplace is illegal under New Jersey and federal law, but it is still widespread. Workers can take legal action if they have been unlawfully discriminated against because of their age, but proving age discrimination in court is not easy. In some ways, it’s harder than proving discrimination on the basis of race, sex or religion.

Widespread discrimination

In an AARP survey, over 60% of American workers over 45 reported experiencing or witnessing age discrimination in the workplace. Women were more likely than men to report this, and this perception of discrimination was higher in some industries than others. (Older workers were particularly likely to say they had seen or experienced age discrimination if they worked in the technology industry.)

According to the survey respondents, this discrimination sometimes took the form of comments from co-workers, and sometimes played a role in hiring, firing and other employment decisions.

State and federal laws

One of the most important laws against age discrimination is the Age Discrimination in Employment Act. This federal law, first passed in 1967, protects employees and job applicants over age 40 from discrimination on the basis of their age. These protections cover everything from the hiring process to promotions, terminations and so on.

New Jersey’s Law Against Discrimination provides some additional protections, but has specific exceptions for workers under 18 and over 70.

A high bar for proof

Proving any kind of illegal discrimination in the workplace can be difficult. Generally speaking, employers have wide discretion to fire, refuse to hire or otherwise take employment actions against workers, but they cannot do so because of a worker’s protected status.

In other words, an employer can fire an employee because they felt the employee was not doing a good job. However, an employee cannot legally fire an employee simply because of the employee’s race, sex, religion or other protected status.

However, an employee arguing discrimination on the basis of race, sex or religion doesn’t necessarily have to prove that the employer took the action because of discriminatory intent. In some cases, it’s enough to show that the employer’s actions had a discriminatory impact. For instance, if an employer suddenly imposed a rule that all workers must be available on Saturdays, this would have a discriminatory impact on workers who are followers of certain religions.

That said, the law works a little differently in cases involving age discrimination.

In a 2009 ruling, the U.S. Supreme Court narrowed the scope of protections against age discrimination under the ADEA. Now, plaintiffs must prove that age was the only reason for the mistreatment they received.

Compared to other types of employment discrimination cases, this makes it more difficult to prevail in an age discrimination case. However, with good evidence and strong advocacy, it can be done.