En español | When people think of age discrimination, they usually envision workers fired, denied promotions or never hired simply because of their age.
But what if it’s not your livelihood at stake, but more your professional identity and self-worth? What if you are bullied, made miserable or feel threatened by remarks or actions on the job that focus on your age?
Liz DiMarco Weinmann can tell you. She was in her 50s, working in Washington, D.C., for a public affairs company when, in a meeting with an important — and younger — client, she briefly forgot the name of a spokesperson. “This man started swearing and cursing at me and saying, ‘I am sick and tired of you not having your young staff here who really knows what’s going on,’ as if I were senile,” she recalls. “He took the papers that were in his hands and threw them at me from across the room.”
When Weinmann reported the episode to her manager, the boss compounded the outrage by telling her that if the company lost the account, it’d be because she couldn’t remember things. “It was totally despicable,” she recalls. “That experience was the closest I’ve ever come to thinking to myself that I would just roll up and never work again.”
Age harassment, whether it is deliberately or inadvertently hurtful language, is every bit as illegal as other forms of age discrimination. Yet verbal harassment isn’t taken as seriously. And it can be particularly difficult to get justice in the legal system if you are harassed.
“If you come home and say, ‘I’ve been accused of calling someone an ‘old fart,’ no one bats an eye,” says Michael Borrelli, an employment attorney with Borrelli & Associates in New York. “Older people are the forgotten group that no one cares about. As far as standing in society, they are totally discounted.”
Donna Ballman, an employment attorney in Fort Lauderdale, Florida, agrees. “Older people are getting targeted a lot” by hostile, inappropriate language, she notes.
The data supports that. The federal Equal Employment Opportunity Commission (EEOC) said in a recent report that age-based harassment claims more than tripled between 1992 and 2017. A national survey of 3,900 workers by AARP Research in 2018 found that nearly 1 person in 4 had heard a boss or a colleague make a negative age-based remark about them.
Weinmann, now 67, 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.
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 “we’re not seeing 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 filed 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 are rare. Consider these recent decisions:
- In the 2013 case William Bennis v. Minnesota Hockey Ventures Group, the then-57-year-old Bennis said he felt he was treated poorly because of his age, citing comments by a supervisor such as, “your eyes get worse as you get older” and being told he didn’t need the job as much as a younger employee. A federal district court ruled Bennis hadn’t shown a hostile workplace.
- Debra Fletcher, then 58, sued Gulfside Casino in 2011, saying she was harassed by comments such as being asked if she needed a hearing aid or glasses, or used Geritol, and coworkers bringing up the phrase “Seniors Day” around her. A federal district court ruled that the comments were minor and that they were not “of a level serious enough to constitute age harassment.”
- Charles Denver Baker sued Becton, Dickinson and Co. in 2010, saying he was called too old and slow, was told he lacked energy and enthusiasm, and was informed by a supervisor that he didn’t want anyone over 40 on the sales staff. Baker was 61 when he sued. But he failed to convince a federal court that his workplace environment was hostile. He appealed, but died at age 68.
When Robin Shea, an attorney with Constangy, Brooks, Smith and Prophete turned 40, her younger coworkers draped black crepe paper throughout her office and left a cardboard tombstone. She thought it was funny then but now that she’s over age 60, she no longer finds humor in age-related jokes. “Because the threat seems more real,” she says.
State age discrimination laws vary
It 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.