HR Policies & Procedures

Age Discrimination: Evidence May Be Subtle But Still Sufficient

Age discrimination in the workplace can be subtle, but subtle doesn’t mean insufficient, says Attorney Joan Farrell, BLR® Senior Legal Editor. And with Boomers nearing retirement, it’s a looming issue.

Yes, says Farrell, we’re all aghast when we read about direct evidence of discrimination, like the manager who allegedly said he fired an employee because she was “old and ugly.” But most age discrimination claims are based on circumstantial rather than direct evidence. Take for example the age discrimination case the Equal Employment Opportunity Commission (EEOC) recently settled with AT&T for $250,000.

According to the EEOC, AT&T violated the federal Age Discrimination in Employment Act (ADEA) when it fired a 53-year old manager while it treated younger, lower-performing managers more favorably by retaining them or allowing them to transfer.

More favorable treatment of younger, similarly situated employees can be circumstantial evidence of age discrimination. Other examples of circumstantial evidence include comments by an employee’s supervisor or other decision maker that may reflect age bias.


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For example, comments by supervisors about an employee’s retirement plans can often create problems for employers. In a recent age discrimination case, an employee claimed he was denied a promotion because his supervisor said he “was ready to retire” and she wanted to fill the position “on a consistent basis for years to come.” Israel v. Geithner, 1:12-CV-346 ENV SMG, (E.D.N.Y. Aug. 6, 2013).

Although the employee was eligible to retire based on his age and years of service, he claims he had no intention of retiring and that his supervisor’s comment was evidence of age bias. The court denied the employer’s motion to dismiss, so the supervisor’s comment may turn out to be a costly one for the employer.

In another recent case, an older worker who was fired for yelling and swearing at his supervisor presented evidence that the employer’s decision to terminate his employment was not typical of the company’s policy or practice. The evidence indicated that heated arguments were relatively common in the factory and that no other employees had been fired for yelling and swearing. Ridout v. JBS USA, LLC, 716 F.3d 1079 (8th Cir. 2013).

In addition, because younger employees received more lenient treatment for violations of comparable seriousness, the court ruled there was sufficient evidence of age discrimination to allow the case to proceed to a jury trial.


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Tips for Preventing Age Discrimination Claims

Here are Farrell’s suggestions for preventing age discrimination claims:

  • Make sure the company’s policy against discrimination and harassment clearly states that age discrimination will not be tolerated. And make sure the policy is clearly communicated to all employees.
  • Provide training on age discrimination laws to managers, supervisors, and any other employees involved in making decisions about hiring, pay, working conditions, or benefits.
  • Audit your company’s processes for recruiting, hiring, promoting, and firing for age discrimination or negative stereotyping of older workers.
  • Make sure that job qualification standards are based on legitimate, nondiscriminatory, job-related factors.
  • Before taking an adverse employment action, check to be sure the action is consistent with treatment of younger, similarly situated employees.
  • If an employee is having performance problems, counsel or warn the employee before taking adverse employment action, and provide an opportunity for improvement. When documenting poor job performance, be sure to include specific, objective examples of how the employee has failed to meet established standards.
  • Check state laws and local ordinances to ensure compliance. The federal ADEA covers employers with 20 or more employees and applies to those who are at least 40 years old, but many state and local laws cover smaller employers and some protect individuals under the age of 40.

In tomorrow’s Advisor, the delicate business of asking older employees about retirement, plus an introduction to BLR’s unique 10-minutes-at-a-time training system for supervisors and managers.