Retirement: The Long, Hard Road of Fighting Age Bias

By: Jackie Stewart, Kiplinger’s Personal Finance

A wave of pandemic-related early retirements may be about to reverse itself. Instead of older Americans fleeing the labor force, more are expected to participate in it over the coming years.

Still, many older Americans face age bias in the workplace even though the Age Discrimination in Employment Act prohibits discriminating against workers 40 and older.

Although there are risks to fighting back and filing a complaint, “going quietly is generally not a good idea,” says Tom Harrington, a principal at the Washington, D.C.-based Employment Law Group. Age discrimination often takes the form of older workers who are unjustly fired, laid off or passed over for hiring and promotions. Age-based harassment is also prohibited.

How do you prove it?

Proving age discrimination isn’t easy because there is often little direct evidence of misconduct. Instead, there may be more indirect clues, such as coded language, including statements like the company has a “desire to bring in new blood” or “they are looking to reinvigorate our workforce,” Harrington says. Those types of phrases hint at a desire for younger workers without saying so explicitly.

If you believe you are facing age-based harassment or discrimination, document the incidents in real time. Write down inappropriate comments along with who made the remarks and when. Note any patterns you see of older workers who were pushed out and younger workers who were hired instead. If you meet with anyone at the company to discuss your treatment, take good notes of the meeting and “memorialize that as quickly as you can for your own files,” Harrington says.

Blaming poor performance

Most employers who terminate a worker because of age do so under the guise of poor performance. If you receive a performance review that is unexpectedly negative and you believe it was motivated by ageism, find out your company’s policies for filing a complaint and submit it to the appropriate person, usually someone in human resources. “That’s advice we would consistently give to clients, whether it’s an age or race discrimination claim, if only because that gives them additional protections,” Harrington says.

Filing a complaint with an employer is a legally protected activity and often serves as a warning shot for the company to back off and review its actions. That employer is now on notice and could be hit with a retaliation complaint if the company mistreats you for going on the record with your concerns. Retaliation complaints are often easier to prove than the initial discrimination claim, Harrington says.

To pursue an age discrimination case under the Age Discrimination in Employment Act, the first step for nonfederal workers is filing a complaint, known as a “charge of discrimination,” with the EEOC. Depending on where they live, nonfederal workers have either 180 days or 300 days from the date of the last incident to file. The agency will begin the investigation and notify the employer within 10 days. On average, investigations take about 10 months.

After investigating the complaint, the agency will issue either a letter of determination, which attests that the EEOC believes discrimination likely occurred, or a dismissal and notice of rights, which means the investigation couldn’t reasonably conclude that discrimination took place. Either way, you still have 90 days to file your own lawsuit after the EEOC finishes its investigation.

Mediation through the EEOC is another option. If you go that route, the mediator won’t try to determine if discrimination occurred. Instead, the mediator will see if you and your employer can work out your concerns.

(Jackie Stewart is a senior editor at Kiplinger’s Retirement Report. For more on this and similar money topics, visit Kiplinger.com.)