How Do You Prove Age Discrimination?


Age discrimination in the United States is a rampant issue. When an employer needs to do layoffs, restructuring, or reassignments, the older employees are often the first ones pushed out the door. To make matters worse, when older employees are laid off or terminated, it’s often significantly more difficult for them to find new employment than it is for younger applicants.

What is age discrimination?

Age discrimination typically involves an employer who views an older employee or job applicant less favorably based on their age. The Age Discrimination in Employment Act (ADEA) is the federal law that governs age discrimination in the United States, and offers protection to employees and job applicants who are 40 and older. The ADEA prohibits employers from considering an older employee’s or applicant’s age when making important decisions such as hiring, termination, promotion, demotion, discipline, compensation, benefits, or terms of employment. The law applies to private employers with more than 20 employees, and to all public employers in federal, state, and local government.

If you’re a victim of age discrimination or age harassment, there are several ways to prove your case:

  • Age-based harassment
  • Direct evidence
  • Disciplinary actions
  • Favoritism
  • Intentional exclusion
  • Promotions and hiring bias

Age-based harassment

In the workplace, harassment becomes a problem when it leads to a hostile work environment. For your situation to qualify as a hostile work environment, the harassment needs to be severe enough that it impedes your ability to do your job. If you can prove that you were operating in a hostile work environment due to age-based harassment before you were laid off, terminated, or demoted, that may prove your case of age discrimination. Even if you’re not terminated, you may still have a case for age harassment.

Direct evidence

Direct evidence is the easiest way to prove age discrimination in a lawsuit, though it hinges on a supervisor or HR representative being careless enough to make a derogatory comment about your age. Following are some common examples that offer direct evidence of age discrimination:

  • A manager who tells you it’s time to make room for younger employees
  • An HR representative who asks when you plan to retire
  • When someone asks age-based questions in the course of an employment interview
  • Job notices and advertisements that include age requirements, specifications, limitations, or preferences
  • Company policies that unfairly discriminate against older employees
  • Superiors who jokingly refer to you as an “old fart” or a “dinosaur”

Note that even in situations where the age-based remarks are delivered jokingly, the comments may offer direct evidence that someone in a superior position views your age negatively. Anytime you hear these types comments, make a point to document what was said, notate the time and date, and jot down any witnesses. It’s even better if the comments are delivered via email or text message, as those provide you with physical proof of the comments. Just be sure to forward the email to your personal email address or take a screenshot of the text, as most companies walk you out of the building when you’re laid off and don’t give you the chance to access any files on your work computer.

Disciplinary actions

Even though at-will employment laws allow employers to terminate employees at any time and for any reason, employers will often attempt to create a record of disciplinary actions before terminating an employee in order to justify their actions. While many managers feel like this covers their discriminatory motivations, it can actually be a huge red flag in court. If, for example, you didn’t start receiving disciplinary write-ups until you turned 40, or until a younger employee came along who was being primed to replace you, that can prove that your employer was actively preparing a case to terminate you. It’s also a red flag when an older employee is written up for infractions that may be legitimate, but younger employees aren’t being written up for the same issue. For example, if an older employee and five younger employees are 15 minutes late to work but only the older employee is written up for attendance, that’s clearly age discrimination.


If younger employees consistently receive better sales leads or assignments, that may be a good sign that the manager who is divvying out leads and assignments is biased against older employees. It’s also a red flag when older employees lose office space to “make room” for younger employees.

Intentional exclusion

The court doesn’t care if you’re not part of the popular crowd that goes to lunch every day, but a judge will take notice when an older employee is consistently excluded from trainings, events, or employer-sponsored activities where everyone else was invited. If you’re ever excluded from trainings, events, or employer-sponsored activities, write down the time and date, and jot down a few coworkers who can testify that you weren’t invited. It’s also helpful if you have evidence that you were intentionally excluded, such as email chains where you aren’t included, or the fact that other employees received a written invitation, but you did not.

Promotions and hiring bias

Employers that exhibit a noticeable pattern of only hiring young applicants or only promoting young employees are clearly guilty of age discrimination. Whether the goal is to project a younger image, hire “fresh talent,” or appease a manager’s discomfort with subordinates who are older than him or her, the court will see that there’s a history of discriminately choosing younger employees over older employees. It’s important to note that in this regard, you may have a case for age discrimination even if you didn’t apply for the positions or promotions that these younger employees are getting, because there’s clearly a pattern of age discrimination.

What to do when you’re the victim of age discrimination or age harassment

As the ADEA is a federal law, the issue of age discrimination and harassment falls under the purview of the federal government. The Equal Employment Opportunity Commission (EEOC) is the federal agency in charge of administering and enforcing anti-discrimination laws, including the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Equal Pay Act, and the Americans with Disabilities Act.

If you are a victim of age discrimination or age harassment, you have 180 days to file a complaint with the EEOC. Once you’ve filed a complaint with the EEOC, you have 30 days to file a civil suit against your employer under the Age Discrimination in Employment Act.

Need Help With An Employment Law Issue?

The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.

Employment law issues can cause extreme distress and can affect productivity on the job. If you are being harassed at work, or dealing with any other employment issue, consider talking to our AZ employment law team to help you settle your case.

Call our Employment Law team at (480) 464-1111 to discuss your case today.

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