According to the U.S. Bureau of Labor Statistics, the median age of the U.S. labor force was between 42 and 43 years old in 2022. In 2000, it was just 35.3 years of age. Even as the workforce becomes older, age discrimination remains a very real problem. The federal Age Discrimination in Employment Act bars discrimination against people who are age 40 and older. If you have encountered age-related discrimination or harassment at work, talk to a knowledgeable New York age discrimination lawyer about the options the legal system may have for you.
As a recent case from Long Island shows, violations may occur on two separate fronts: age-related discrimination and age-related harassment.
The employee, E.S., was the billing coordinator for a Nassau County gastroenterology practice. In 2018, the coordinator, who was in her 70s, received a new supervisor – a woman in her 40s. The new supervisor allegedly made numerous negative comments about the coordinator’s age, including calling her “old lady” and “grandma,” and suggesting that the coordinator should retire. According to the lawsuit, other coworkers followed suit with the “old lady” barbs, and told the coordinator it was “time for hearing aids.”
In April 2021, the employer fired the coordinator. The employer said it acted because the coordinator violated workplace policies regarding offensive language. The coordinator believed the employer was motivated by her age not her language, so she sued.
The woman’s legal claims fell under two categories: age discrimination and a hostile work environment, both in violation of the ADEA.
Age-Related Hostile Work Environment
Establishing an age-related hostile work environment claim under federal law requires showing “that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” In recent years, New York State and New York City have done away with the “severe or pervasive” part of this requirement, meaning that workers proceeding under the New York State Human Rights Law or the New York City Human Rights Law need not demonstrate severity or pervasiveness. The NYSHRL, for example, only requires that a worker show “unequal treatment based on membership in a protected class.” Federal law, however, still demands that the harassment be pervasive or severe.
In the coordinator’s case, her coworkers and her supervisor allegedly called her insulting age-related names (“Old Lady,” “Grandma,”) and made derogatory age-related insinuations (“Hearing Aid????”). They also made comments like “hurry up out, old lady, why are you in there so long” whenever she used the bathroom, which got to a point that the coordinator “couldn’t even go to the bathroom,” according to her complaint.
The comments and insults, written on Post-It notes stuck to the coordinator’s computer keyboard or made verbally, allegedly occurred on a “regular basis.” That allegation about the frequency of the abuse was critical. The court determined that, based on how often the harassment allegedly occurred, it met the pervasiveness standard of the ADEA, meaning that the coordinator had all the essential pieces for an actionable hostile work environment claim.
Age Discrimination Under the ADEA
The law says that workers must demonstrate certain things to pursue a federal age discrimination claim. First, they must provide a “prima facie” case of discrimination. Clearing that hurdle involves four evidentiary components: (1) membership in a protected age group, (2) qualification for the job, (3) an adverse employment action, and (4) an “inference of discrimination.”
Once the worker clears this hurdle, the law demands that the employer provide a legitimate, non-discriminatory basis for its action. If the employer does that, the law shifts the burden back to the employee to prove that the employer’s stated reason actually was a pretext for discrimination.
Often, clearing the pretext hurdle can be the most challenging task. In the coordinator’s case, a coworker made a credible complaint that the coordinator used “offensive and discriminatory” language. The employer investigated, substantiated the claim, and took disciplinary action. Based on those facts, a reasonable jury could not decide that, but for the coordinator’s advanced age, the employer would not have fired her. As a result, that claim failed but, as noted above, her hostile work environment claim survived, meaning she retained the opportunity to have her day in court against her employer.
Workers deserve an opportunity to do their jobs free from abuse from coworkers regarding their age, race, gender, sexual orientation, gender identity, nationality, ethnicity, disability, or marital status. If you have been denied that opportunity at your job, the experienced New York age discrimination attorneys at Phillips & Associates are here to help. Our team is committed to helping workers harmed by age-related harassment and discrimination get justice through legal action. Contact us online or at (833) 529-3476 to set up a free and confidential consultation and learn how you can put our team on your side.