What is Age Discrimination?

An employer cannot discriminate against an employee for being over the age of 40. Employers are free to discriminate against employees for being young (under 40). Here are some of the kinds of evidence that are often important in proving age discrimination:

• Replacement of the fired worker with someone who is younger (even if that person is also over 40).
• Use of age-related slurs (for example, referring an older employee as “old man” or “that old SOB”) or “code words,” such as referring to older workers as “dinosaurs,” talking about needing “young blood” in the workforce, or wanting “race horses, not plow horses.”
• Age-related jokes.
• Suggestions that an older employee is getting too old to do the job and should consider retirement.
• Comments indicating hostility toward older people generally (employees, customers, vendors, or others).
• Different treatment of younger workers in similar situations (for example, giving younger employees lower sales or production quotas, higher pay, or more opportunities for training and promotion).

Age-related comments are generally most helpful when they are made by someone who supervises the older employee, or when such a supervisor knows about them and doesn’t take action to make them stop.