The U.S. law protecting workers from age discrimination is not equal to the protections under Title VII that protect workplace discrimination based on race, color, religion, sex or national origin. Pending legislative actions that could put workplace age protections on par have sat in Senate committee for more than two years. What can be done in the meantime? Two TikTok employment lawyers agree the best protection is self-advocacy and documentation.
When Congress passed the Age Discrimination in Employment Act (ADEA) in 1967, they clearly articulated that older workers are disadvantaged in efforts to retain–and especially to regain employment once displaced. Further, the ADEA states that it is unlawful for an employer to refuse to hire or discharge any individual because of age.
When Title VII of the Civil Rights Act of 1964 was amended in 1972 to extend protections to job applicants, the Age Discrimination in Employment Act (ADEA) was not similarly amended. Since then, the Courts have not ruled consistently on ADEA protections. In early 2019, the Seventh Circuit Court leveraged that fact in its ruling against a job applicant claiming disparate impact under the ADEA.
The difference in protections makes it more difficult to prove age discrimination. Under Title XII, a worker needed to establish only that discrimination was a factor in an adverse employment decision to make an age discrimination claim. Under the ADEA, a worker must prove it was the deciding factor.
This is one reason employment lawyers are not eager to take on an age discrimination case. Just because the burden of proof may be more challenging, it doesn’t mean someone experiencing age discrimination is helpless.
Attorneys Educate on TikTok
Two employment attorneys have taken to TikTok to educate workers about the many forms of workplace discrimination. Mahir Nisar, a New York-based attorney, and former California fire-fighter turned lawyer, Ryan Stygar, are active educators on employment discrimination–including age discrimination.
“We’re trying to educate people on what they need to do to advocate for themselves in the workplace,” said Nisar. “As employment attorneys, we want people to learn how to speak up when they see or experience any form of discrimination. But how you speak up is important because it can protect you against retaliation and also compel the employer to address the situation.”
New York employment attorney Mahir Nisar shares his best advice on TikTok–always keep a paper trail.
Both lawyers emphasize the importance of workers understanding their rights, especially if they feel othered in the workplace. Before making a protected complaint, workers need to understand the warning signs and document a pervasive occurrence of inappropriate actions.
“It’s not likely that someone will come up to you and say, hey, you’re 68; I don’t like you because you are old. Therefore, I will fire you,” said Stygar. “But one of the first indicators you may see is casual assumptions in the workplace.”
Stygar lists several assumptions such as:
- you’re not interested in going to happy hour with younger employees
- you’re not interested in the webinar because you don’t understand how it works
- you don’t want to learn about AI, so they didn’t invite you
- you don’t want to go on the company retreat, that’s a golf course, and there’s a lot of walking
“These are harmful assumptions that can lead to isolation. The best way to nip that in the bud early is to document the occurrence in an email,” Stygar said, offering this example. “I noticed an AI conference in San Diego in a couple of weeks. I’m very interested in AI and would like to learn about this too.”
Offering lowball incentives to get older workers to leave is unacceptable, according to California employment attorney Ryan Stygar.
Stygar admits that it’s not fair that older workers have to speak up and force their way into opportunities reserved for younger workers. But when someone is making harmful assumptions, speaking up is the best way to address them.
Self Advocacy Against Ageism
Nisar warns that using legal terms when making a complaint is not enough. Discriminatory actions need to be identified explicitly in writing.
“So many times people say, ‘I’m being discriminated against. I’m in a hostile work environment.’
I know what people are trying to convey, but using those words is not enough. If you’re experiencing ageism, say it. Send an email to HR detailing the type of experience you’re going through, mention your age as the main factor if you believe you are being treated differently than younger employees.”
If HR requests a face-to-face discussion, Nisar and Stygar urge an email follow-up that includes what both parties said.
“At that point, the employer knows that you have engaged in a protected activity, and they have to be very careful how they deal with you,” added Nisar. “Retaliation is against the law, so once put on notice, they are required to investigate and potentially make things better for you.”
How to Fight Age Discrimination
If the discriminatory behavior does not change after documenting and filing a complaint, it’s time to take the next step. Contact a labor attorney or file an ADEA complaint through the Equal Employment Opportunity Commission (EEOC).
If you are seeking employment and feel that age discrimination has prevented access to an opportunity, write letters to your state and federal legislators and file an EEOC complaint.
Non-federal workers have up to 180 days to file a complaint, whereas federal employees must contact an EEO counselor within 45 days.
You have to be your best advocate and paper trails are the way to do it. When any form of discrimination goes unreported, it increases the likelihood of it occurring again. Action not only helps older workers currently impacted by age discrimination, but it also helps to create age equity in the workplace so younger employees will be protected from social exclusion in the future.
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