While undeniable progress has been made in protecting the rights of older workers, research shows more work still needs to be done. One study published in the Journal of Personality and Social Psychology suggests ageism may be the last “acceptable” form of employment discrimination.
Researchers found that among many people who support social equality for women and racial minorities, innate prejudice against seniors in the working world still exists. Older workers are perceived as blocking younger employees from coveted positions and standing in the way of their professional success.
However, age discrimination is particularly subtle. Clues can often be found in the words and phrases used in job descriptions and applications. Keep reading to learn which code words indicate age discrimination and what to do if you encounter it in the workplace.
The U.S. Equal Employment Opportunity Commission (EEOC) asserts that coded references to an individual’s age may violate the Age Discrimination in Employment Act of 1967 (ADEA.) The ADEA is a federal law that prohibits discrimination on the basis of age for employees and job candidates over the age of 40 years old. It applies to employers with 20 or more employees, and it covers issues related to benefits, hiring, training, compensation, promotions, firing, layoffs, and other guidelines and privileges of employment.
Examples of code words that suggest age discrimination might be occurring include:
- “College student.”
- “Digital native.”
- “Dynamic.”
- “Energetic.”
- “Fresh.”
- “New blood.”
- “High-energy level.”
- “High potential.”
- “Recent college graduate.”
- “Set in their ways.”
- “Tech-savvy.”
- “Young blood.”
While there is room for interpretation when it comes to these code words, it is also clear how they could imply a preference for “youth” and youthful energy, familiarity with technology, and recent college experience.
While these terms do not outright target candidates in a certain demographic, older applicants told the AARP they believe these terms are used to discourage older individuals from applying. In fact, in a recent AARP survey, nearly two-thirds of workers between the ages of 55 and 64 years old felt their age had a negative impact on their chances of landing a job.
Do These Code Words Rise to the Level of Age Discrimination?
To determine if you have cause to bring a claim of age discrimination, it helpful to understand the concept of discrimination in the context of your job. In the workplace, discrimination means treating someone differently or less favorably based on their protected class, such as race, color, religion, sex, national origin, disability, genetic information, or age.
Workplace discrimination can include:
- Denial of a workplace accommodation for one’s religion or disability.
- Disclosure or inquiry about one’s personal medical or genetic information.
- Unfair treatment, including not hiring a qualified applicant or demoting or terminating someone simply based on the categories mentioned above.
- Harassment from one or more managers, colleagues, reports, or clients based on these protected categories.
- Retaliation against someone who reports job discrimination.
How to Prove Age Discrimination?
According to the ADEA, to successfully prove you were treated unfairly at work because of your age, you must show someone else was favored over you and that person is significantly younger.
Older Workers Benefit Protection Act
The Older Workers Benefit Protection Act (OWBPA) is an amendment to the ADEA that further clarifies prohibitions against age discrimination in the workplace. Specifically, the OWPBA requires employers to offer benefits to workers 40 years old and older who are the same or equivalent to those offered to younger workers. Those benefits include severance pay for layoffs.
The OWPBA helps ensures older workers are protected from unfair layoffs based simply on their age. When they sign a severance agreement, they should be fully informed of their rights. They have a certain amount of time to consider their rights and revoke a signed agreement if they choose.
Protection Against Age Discrimination in Pennsylvania
In Pennsylvania, employers must also comply with the ADEA and the Pennsylvania Human Relations Act (PHRA) which also provides protection against age discrimination for employees who are 40 years old or older.
The PHRA requires a plaintiff to prove by a preponderance of evidence, their age is the “but-for” reason for termination or other unfavorable treatment. To prove their case, the plaintiff must show the following:
- They are 40 years of age or older.
- The employer acted adversely against them.
- The employee is qualified for the job at hand.
- The employee was eventually replaced by another employee significantly younger in age.
If all of these factors apply, the employer must then show the non-discriminatory reason for the adverse action against the plaintiff. If they are successful, the burden goes back to the plaintiff who must show the employer’s reason is inaccurate or flawed.
How to Report Age Discrimination in Pennsylvania?
If you believe you experienced adverse treatment at your job solely because of your age, you can file a claim with one of two agencies in Pennsylvania: the Pennsylvania Human Relations Commission (PHRC) or the EEOC. Because these agencies work together to process claims, you only need to file with one or the other.
The EEOC created an online portal where anyone who filed a claim can check its status at any time. The portal allows users to upload and store documents related to their case. With both agencies, claimants have a certain amount of time to file from the date discrimination took place, so delays are not recommended.
Once the charge is filed, the EEOC will provide a copy of the charge and a charge number for your records. Your employer will receive the same information within 10 days. From there, the EEOC may:
- Ask you and your employer to attend mediation.
- Ask your employer to respond to the charge before turning it over to an investigator.
- Dismiss your claim if it is past the deadline or does not fall under the authority of the EEOC.
After the investigation is complete, you will receive the result. If the agency determines age discrimination did occur, you have the right to then sue your employer. Anyone who encounters job discrimination should consider hiring an employment lawyer who knows the law and will vigorously defend their right to fair treatment at work. They will review your case, help you file a claim, and represent you in court if necessary.
The subtle code words employers use to “weed out” older employees are not only offensive, but they are also potentially illegal. It is not easy to speak out against job discrimination, but it is incredibly important to in order to help create a diverse workplace where everyone can thrive.
Delaware County Employment Lawyers at The Gold Law Firm P.C. Represent Clients Facing Age Discrimination at Work
Our Delaware County employment lawyers at The Gold Law Firm P.C. have seen how demoralizing age discrimination can be for older employees. We firmly believe in the importance of a fair and equitable work environment for every employee. We can help you file a claim with the EEOC, or take your case to court. Call us at 215-569-1999 or contact us online to schedule a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and Southeastern Pennsylvania, including Wilkes-Barre, Scranton, Northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.
