Karen Johnston

Q. I’ve been laid off at the age of 58.  I’m worried about age discrimination.  What can I do if I suspect it’s happening in my job search? 

A. Age discrimination, particularly subtle age discrimination, can be extremely difficult to identify and prove.  With the passage of the Age Discrimination in Employment Act (“ADEA”) in 1967, much of the overt (or disparate treatment) age discrimination disappeared from the workplace.  The more subtle (or disparate impact) discrimination, however, may well be continuing.  Disparate impact refers to an employment practice that seems to be neutral but its impact falls disproportionately on a protected group. 

Even though estimates are that approximately one-half of all workers will be over age 40 and eligible for protection under the ADEA by 2010, cases decided when applying the ADEA to date tend to favor employers.  To be successful in a disparate impact age discrimination case, you would have the burden of both isolating and identifying the specific employment practice responsible for creating the disparate impact and demonstrating what that impact was.  Merely alleging an employment practice has had an adverse impact or pointing to a generalized policy that leads to such an impact is not enough.   

If you are successful in meeting this burden, all the employer needs to show in response is that, if there has been a disparate impact on an individual who is a member of the age protected class, the impact is justified by reasonable factors other than age.  The employer would need to relate the facts and circumstances of each individual situation to such factors to show age was not the reason the decision was made.  As you can see, the individual will likely have a much harder time showing there has been discrimination than the employer will have showing there was no discrimination because it acted based on factors other than age. 

Given that mounting a legal challenge may not be the easiest option to pursue when you suspect age discrimination, you may want to consider how to avoid giving age related information and how to deflect questions which you perceive as related to age.  For example, you may want to review your resume and other application materials and remove any references to age or any facts, such as the year of college graduation, from which age can be inferred.  

Also, you need to remain alert to questions which indicate your age may be a concern to the employer, or which seem intended to elicit age related information without asking about age. One such question I heard recently was:  How much longer do you plan to work?”  If you get a question that raises a red flag, don’t be afraid to respond in a polite way which asks for clarification or to follow up with another question asking how the question asked is relevant to your ability to do the job for which you have applied. 

If you believe you have experienced age discrimination, you can talk with a representative at the local office of the federal Equal Employment Opportunity Commission (”EEOC”) or your state’s human rights agency.  Someone will discuss with you the specifics of your situation and, based on that information, can file and investigate a complaint on your behalf.