By Jack Tuckner, Esq.
Age discrimination is a real thing. It is alive and well. Ageism in our culture. If you don’t believe it, you’ve got your head in the sand. So, how do you know you are being treated differently in the workplace, discriminated against because of your age? Well, first of all, are you over 40? That’s the age at which we are protected by the Federal Age Discrimination in Employment Act. If its age discrimination so-called reverse, such as they are treating you badly, not promoting you, firing you, because you’re young, you are not protected under federal law, although some laws such as the New York State Human Rights Law, the state law that protects employees from discrimination simply starts at 18 and up. So, even if its so-called reverse age discrimination and you are 19 and you are being discriminated against, it’s still illegal.
But for most of us, age discrimination starts to kick in and really be a problem when we’re older. How do you know its happening to you? What are the signs? Well, is your employer letting people go who are older and are still hiring younger people? Have you stopped getting raises? Have your evaluations gotten bad all of a sudden for no apparent reason? Have you heard tacky comments about your age, discriminatory comments that reference how long you have been there, when you are gonna retire, you are getting a little long in the tooth, you know those types of comments – they may be playful, or are they are attempts at humor, but they are ageist, and in fact it may be that the other shoe’s gonna drop soon and you are simply going to be let go.
What do you do? If you suspect that you are being treated differently and set up to fail or to be fired because of your age, to make room for younger blood, etc., you need to complain about it. You need to put it in writing because when an employee complains about any kind of discrimination including age discrimination the employer has to investigate that complaint and determine whether or not the complaining employee may have a point. And if you are terminated right on the heels of a complaint about discrimination it smells retaliatory, it is presumptively retaliatory. So, it may empower you, first of all it may prevent the employer, if in fact you are being subjected to age discrimination by let’s say your manager, it may in fact eradicate it. The employer may correct it which it is required to do. And that would be terrific. You’d win the battles and the war.
But if the employer was getting ready to fire you and your complain doesn’t do much to change all of that it puts you in a better position to command a beefier severance package because otherwise the termination may look really retaliatory and illegal and discriminatory. Now if your job is in fact being eliminated in a real reduction-in-force, your company is firing 25 people and you are one of them and you are not going to be replaced with a younger person, it may not be age discrimination. But the fact is if you suspect it’s age discrimination, you’d want to complain about it to cut the employer off at the pass, so to speak. You want to be the one who is standing up for your right not to be treated differently because you are an older worker.