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Analysis | All about ageism at work and why successful lawsuits are rare

Discrimination against employees based on their age is illegal in many countries. Still, legal experts say such unfair treatment, especially of older workers, is widespread. Age discrimination is a growing concern for societies with advanced economies as their workforces age.

1. What is age discrimination?

Ageism is when someone is disadvantaged or treated unfairly because of their age. Both young and older people can be confronted with it. In the US, the federal Age Discrimination in Employment Act (ADEA) of 1967 only applies to individuals 40 and older, although some state laws cover youths. The ADEA protects applicants and employees from discrimination in hiring, promotion, termination, compensation and the terms, conditions or privileges of employment. The UK Equality Act of 2010 covers both direct discrimination, where an employee is treated differently from others because of age, and indirect, where work policies or procedures disadvantage an age group. It also includes harassment — humiliating, insulting, or humiliating someone for their age — and victimization — mistreating someone for expressing ageism.

Polls show that age discrimination is very common in the workplace, and it seems to be particularly prevalent in the technology and finance sectors. In a 2018 survey conducted by the American Association of Retired Persons, 61% of workers age 45 and older reported seeing or experiencing it. A survey by the Urban Institute and ProPublica published that same year found that 56% of workers age 50 or older were pushed out of their old jobs before choosing to retire. Research indicates that discrimination against older applicants is ubiquitous. When researchers submitted fictitious resumes to employers that were designed as identically as possible except for age, older applicants received fewer callbacks than younger applicants.

3. Are gender and race factors?

Yes. In a study using fictitious resumes, researchers found that discrimination is more severe and starts much earlier for older women than for older men. In the AARP survey, disproportionately high percentages of women and black workers (64% and 75%, respectively) reported witnessing or experiencing age discrimination. In the UK, discrimination complaints related to menopause are on the rise, and more older women are poised to challenge companies that fail to recognize their health needs.

4. How common are lawsuits?

In 2020, just over 14,000 age discrimination claims were filed in UK labor courts, which adjudicate legal disputes related to employment law. Some contain additional complaints, for example about incapacity for work. According to the Justice Department, numbers have risen due to the pandemic, causing large numbers of older workers to leave the workforce earlier than expected, some involuntarily. In the US, about 13,000 complaints were filed under the ADEA in 2021; these figures do not include cases filed under state laws. Legal experts say the number of complaints is a fraction of the actual incidents.

5. Why are lawsuits relatively rare?

For starters, lawyers say, many cases are settled out of court, largely through severance payments to older workers who have been laid off. In other cases, employees may not know their rights or be intimidated into filing lawsuits. Applicants must not have proof that they have been rejected because of their age.

6. Can age discrimination ever be legally justified?

Yes. In the UK, age differs according to gender and race as the law allows employers to discriminate on the basis of that if they can show that their action was justified, for example on health and safety or fitness reasons. For example, UK-registered pilots are forced to retire at 65, although mandatory retirement ages are generally not allowed. In the US, the ADEA offers a similar exemption to a ban on compulsory retirement, as well as an exception for certain employees in executive positions.

7. How hard is it to win a case?

Like any discrimination case, age discrimination lawsuits can be a challenge to win. In the labor courts of England and Wales, the success rate of such cases in 2021 was around 2%, according to data from law firm GQ Littler. In the US, due to a 2009 Supreme Court ruling, it is necessary to prove that age was the deciding factor in an employer’s action. Legislation introduced in Congress in 2021 would provide that it is sufficient to show that age was a motivating factor, as is the case with suits for discrimination based on race and gender.

8. How much money could you get in a business?

Unfair dismissal awards are usually capped at just over £93,000 ($112,430) in UK labor courts. But if discrimination is proven, the limit will not apply and the damages will be unlimited. A banker of Citigroup Inc. who was fired after being called ‘old’ at 55, won an age discrimination lawsuit in 2020 and was awarded nearly £2.7 million, although Citi successfully appealed in July to reconsider the case. The largest ADEA resolution to date is a case filed against the California Public Employees’ Retirement System, California’s retirement plan for state employees, by 1,700 disabled police officers, firefighters and other safety officials whose disability benefits were reduced based on their age when they left. were passed, according to the Equal Employment Opportunity Commission, a government agency that enforces federal laws against discrimination in the workplace. The pension manager agreed to pay $250 million to settle the case in 2003.

9. How is an aging workforce relevant?

It is estimated that about a quarter of all workers in developed countries will be over 55 by 2030. To ensure that vacancies are filled in the future, labor experts argue, employers must reduce prejudice against this group.

More stories like this are available at bloomberg.com

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