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Let’s Keep Legal Protections for Older Employees Strong

Job ads and court action show age discrimination in the workplace never gets old

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The employment ad , for a health technology company, sought a staff attorney with "3 to 7 years (no more than 7 years) of relevant legal experience.” Yes, you read that correctly: no more than seven years of relevant legal experience. It’s a striking stance — employment experience being seen not just as a negative, but as an actual disqualifier.  

The job ad in question resulted in a lawsuit (brought by AARP Foundation) and, subsequently, a ruling by the 7th Circuit Court of Appeals that temporarily struck a small but important blow against age-related employment discrimination. However, the court is already reconsidering that decision this fall. Make no mistake, age discrimination in the workplace is alive and well.

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A new AARP study — “Age Discrimination against Older Workers" — finds that, of 3,900 adults (age 45 and up) polled, 61 percent have experienced or seen age discrimination at work. Sometimes it’s apparently built into the application process. Of respondents who have applied for a new job in the last two years, 44 percent report they were asked their age or school graduation year. Although it’s not illegal for employers to seek that information (only to base their hiring decisions upon it), it’s not hard to imagine how, too often, such age-related data is evaluated behind closed doors.

For example, in a recent study, Tulane University researchers sent more than 40,000 résumés to apply for about 13,000 job openings posted online in 12 U.S. cities. They responded to each posting with three different résumés representing a different age group (i.e., younger, middle-aged and senior applicants). Even though all had nearly identical skills, the study found older candidates received far fewer callbacks — anywhere from 20 percent to almost 50 percent fewer — than younger ones. “It’s just age; it doesn’t have to do with experience,” concluded the study’s coauthor.

Employees are getting older, but many hiring practices remain static

Despite the evolution underway in the U.S. workforce and around the world, with older employees comprising a larger and larger percentage of the workforce (not to mention the available labor market), too many organizations continue to view older employees with skepticism or, as in the case above, see the combination of age and experience as an outright deal breaker. 

Although things like the recent 7th Circuit Court of Appeals ruling are helping to spread the word in the business community that hiring practices such as “experience ceilings” are discriminatory, age discrimination shows few signs of being ready to retire.  

That’s what makes legal protections against age discrimination so important — and to so many people. When the Age Discrimination in Employment Act (ADEA) was signed into law in 1967, it set out to protect people age 40 and up from age-related employment discrimination. As one measure of the law’s importance, consider this stat: When ADEA became law, the U.S. population of people ages 40-65 was about 50 million. Today, that number has more than doubled, to 100 million-plus. As such, ADEA is about as mainstream as a law can get.

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But legal protections, even long-established ones, can’t be taken for granted as they have a tendency, over time, to be eroded. A recent Supreme Court ruling strengthened employers’ ability to win age-discrimination lawsuits, by making age discrimination harder to prove. That narrow 5-4 ruling will likely be top of mind when the court kicks off its next session by considering a lawsuit in Arizona in which two firefighters, the oldest in their district, allege they were let go because of their age. AARP Foundation attorneys have pointed out to the court that the age discrimination protections in the law are actually stronger than other laws in this case, but it remains to be seen whether the court will accept that argument given its skepticism about age cases in general. Time will tell.

Age discrimination is a unique bias. Sooner or later, everyone is eligible. Age discrimination protections were important when ADEA was signed into law more than 50 years ago, and they’ve only gotten more important. Let’s hope our judicial and legislative leaders keep that in mind.

Jo Ann Jenkins is CEO of AARP. She is the author of Disrupt Aging, now available in paperback. Follow her on Twitter @JoAnn_Jenkins.

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