Age Discrimination Lawsuits: What GCs Should Know

By Andrew Lu on December 14, 2012 | Last updated on March 21, 2019

When you picture a programmer at a Silicon Valley start-up, you're likely imagining a 20-something-year-old in sneakers and a hoodie, and not a dressed-up adult in his 40s. And apparently many employers have this same impression, as older tech workers say they're experiencing age discrimination and are being squeezed out, reports Reuters.

Based on anecdotal accounts, there may be no other form of illegal discrimination quite like age discrimination, which experts say seems to be ingrained in certain industries.

It's hard to imagine employers blatantly favoring workers of a certain gender, race, or religion, and getting away with it. Yet in places like Silicon Valley, some say that younger workers are favored, and certain recruiters and investors openly discriminate against older workers.

So what do in-house counsel need to know about this problem? Here are a few reminders:

First, the federal Age Discrimination in Employment Act (ADEA) provides that employers may not discriminate against people who are age 40 or older. This means that it is illegal for employers to treat older workers differently when it comes to things like hiring, firing, determining pay, making job assignments, deciding whom to promote, deciding whom to lay off, and any other term or condition of employment.

And while the federal law only kicks in for workers who are 40 or over, many states also have their own age discrimination laws, some of which even protect workers as "old" as 18.

In practice, you probably already know that you cannot discriminate based on age. However, there may be some more subtle acts of age discrimination that you may not be aware of. For example, it may be illegal to advertise for candidates by only looking for "recent college graduates" or those who would fit in well with a "young dynamic culture." Such advertisements may preclude many older workers from the get-go, even if your intentions were not discriminatory.

Other common areas of concern involves job benefits and deciding whom to lay off. In general, you cannot require older workers to contribute more to health insurance plans simply because of their age. And you typically can't make layoff decisions based on age, even if older workers happen to earn more.

Age discrimination can happen in any industry, from technology to finance. Age discrimination is often subtle and can be difficult to spot. Make sure your company policies are age-neutral and be careful with your job advertisements.

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