What Age Discrimination at Work Really Sounds Like — and How You Can Fight Back

 Weinmann returned to New York after the incident in Washington and got an advanced business degree. She now owns a consulting practice and advocates for older workers. That includes talking to MBA alumni at New York University about the age harassment they can expect to face as they get older. The language of ageism is “pervasive” in business, she says. “People think that when you get to a certain age, you’re not important.”

ADEA and federal laws

Part of the reason age-biased language is so pervasive is that few employers train workers to view negative age-based remarks as seriously as those that target race, gender or sexual orientation.  

But more telling are the roadblocks to seeking justice. While federal law says “it is unlawful to harass a person because of his or her age,” that same law limits the damages victims can seek in federal court to things like back pay. In other words, in a federal court case, you can’t be compensated for any mental anguish caused by verbal harassment, and your employer can’t be forced to pay punitive damages, no matter how blatant the abuse. That’s different from federal laws covering discrimination based on race, gender, sex or disability, which allow for compensatory and/or punitive damages.

Former AARP Foundation lawyer Laurie McCann recalls a case in which an older worker’s desk was taken away from him to force him to quit or retire so younger colleagues could be seated. “The older worker who is standing in his office without a desk, what are his monetary damages under federal law? None,” she says. “But he has still suffered harassment.”

AARP and other organizations have pushed for a change in the federal Age Discrimination in Employment Act (ADEA) to allow for compensatory and punitive damages, McCann says, but have not seen any progress.”

One effective way to win an age-based harassment case at the federal level is to prove that the employer intentionally created a work environment in which the harassment was so severe, hostile and pervasive it would cause a reasonable person to quit, McCann says. In legal terms, that’s called “constructive discharge”; if your case meets this standard, you can sue for lost wages.

An example of that is a case settled in 2019 with the assistance of AARP Foundation attorneys against Ohio State University. Two instructors, now 64 and 68, in the College of Education and Human Ecology, alleged “an ongoing and unchecked pattern of harassing conduct” by their supervisor, which included calling older workers “millstones” and “deadwood.” That created “working conditions so intolerable that a reasonable employee in either of their circumstances would have been compelled to resign,” the women said in an EEOC complaint. Eventually, the women’s jobs were eliminated and they were forced to retire. The EEOC found the women had faced “intentional age discrimination” in the workplace. Facing a potentially embarrassing legal battle, the university settled with the women for $765,000 in 2018, gave them their jobs back and committed to conduct training sessions to prevent further bias.

Still, such wins hardly keep pace with the amount of discrimination older workers experience, but they can be achieved. Consider these recent decisions:

• In December 2023, the EEOC ruled in favor of a 49-year applicant for a sales position who was rejected because the recruiters said the applicant was “overqualified” and the company was “looking for someone more junior that can… stay with the company for years to come.” The company, Exact Sciences, agreed to pay $90,000 to settle the claim.
• Pharmaceutical giant Eli Lilly in 2023 agreed to pay $2.4 million to settle a nationwide class action lawsuit. The company’s “Early Career” hiring initiative, which lasted four years, included goals intended to increase the number of younger workers Lilly employed.
• In 2023, the medical device manufacturer Fischer Connectors, Inc. agreed to pay $460,000 to settle a lawsuit from former human resources director. The company’s U.S. president asked the director “Why is [Fischer’s] workforce so old?” and “What age is the mandatory retirement [in the U.S.]?”

State age discrimination laws vary

It sometimes can be more financially rewarding to pursue an age harassment claim in some states than in federal court. Some states, like Hawaii and Illinois, allow age harassment suits and permit the awarding of compensatory and punitive damages. But state age-bias laws vary widely. South Dakota, for example, has no state age discrimination law at all.

Even in states with generous laws against harassing workers, a court battle can be long and costly, and should be viewed as a last resort, experts say. But that doesn’t mean harassment should be tolerated.

 “I would say anybody who is subject to harassment should, at the very least, talk to their manager — assuming the manager wasn’t the one who was doing it. If they are, go to the HR department,” McCann says. “And if they refuse to address the behavior, the victim should consider filing a charge of discrimination with the EEOC. It’s wrong and it shouldn’t happen.”

Employment attorney Ballman advises employees to document the harassing conduct: Note how you’re being treated differently than younger employees, write down any age-related comments, and report the behavior to your human resources department, preferably in writing. Those steps satisfy what a U.S. Supreme Court decision requires: that you report discriminatory harassment and give your employer the chance to remedy it.

If the harassment continues, the next step is to consult an attorney and file a complaint with the EEOC and/or with your state’s human relations commission. (Find state human relations commissions at iaohra.org/PublicInformation.) The last resort, if the situation remains unresolved after mediation, is to file a lawsuit against the employer, Ballman says.

There are lots of reasons people endure harassment. Some employees may fear retaliation if they complain about a supervisor’s or peer’s conduct. They might be ashamed or have internalized the idea that maybe they are too old, says Brian Heller, a partner at the Manhattan law firm of Schwartz Perry & Heller.

But not reporting age harassment carries its own consequences. “There’s a cost to not coming forward,” Heller says. “You’ve got to live with yourself for not taking action in response to it. That can cause additional scars on the people who suffer harassment.”  

John Rosengren, author of nine books, has written for more than 100 publications.