When Age Discrimination is Legal

I was reading Mary Schmich's column the other day about a 72-year-old woman who is starting her own PR firm. The main point of the column was that the woman did not hide her age. In fact, she put it right out there, both to stand apart from the competition and to make a point. Good for her.

Of course, as a lawyer, my first thought was age discrimination. Now it wouldn't be a legal issue for the woman in the column, because she's probably not going to fire herself. I suppose it's possible that clients will discriminate against her based on her age, but that's not illegal.

What did come to mind is that while this woman feels emboldened by her age, many people in the workplace feel insecure about their age, and it may be for good reason. Some age discrimination in the workplace is completely legal.

If you are under 40 years old, your employer can make decisions about hiring you, firing you or promoting you based on your age. It's probably because age discrimination is not a big problem for those in their 20s and 30s. I suppose the reverse happens, where someone is discriminated against for being too young, but the law isn't worried about that.

If you are over 40, you are technically protected. It is illegal for an employer to discriminate against you based on age for hiring, firing, promotions, benefits and even job assignments and training. However, you aren't necessarily safe. I think age discrimination happens all the time, it's just hard to prove. Of all the reasons someone is hired, fired or promoted, I bet only a few show up on paper.

So let's say a colleague is promoted ahead of you and the official reason is that their performance is better. If there is another reason, say an illegal one, you may never know. Even if you are aware of the possibility of age discrimination, it's difficult to prove.  And to be clear, you have to prove that you were discriminated against with actual evidence.  Knowing in your heart that it happened or believing that you have been a good worker for 20+ years isn't enough.

Like many other issues, there is the law as it is and the law as it is applied.  And you can bet that only a small portion of the times when someone is discriminated does something ever become of it.


Legal Tip Of The Day from Winfield Attorney Nicole Kersten: When buying a used car, or a new one for that matter, make sure you understand everything about the contract and that you are satisfied with the condition of the vehicle before you sign.  Contrary to popular belief, there is no "three day right to cancel" on a vehicle purchase contract. 



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  • It appears that you missed the most obvious point--as the Supreme Court has interpreted the Age Discrimination in Employment Act, it isn't age discrimination if older employees are fired because their pay is higher, or as part of a corporate reorganization. Maybe, as a practical matter, it appears that one can win only if the punk boss called the employee an old phart.

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