The Age Discrimination in Employment Act or ADEA prohibits discrimination against workers over 40 based on their ages for employers with 20 or more employees. In New Jersey, the New Jersey Law Against Discrimination or NJLAD provides more expansive protection to workers against age discrimination and protects adult workers of all ages. Despite the existence of these laws, age discrimination continues to be a problem in many workplaces. The American Association of Retired Persons found that around 60% of older adults it surveyed reported they had witnessed or experienced age discrimination at their workplaces, and 25% of workers age 45 or older reported receiving negative comments about their ages from coworkers or supervisors.
While age discrimination is against the law, some employers try to skirt the ADEA and the NJLAD so that they can get away with discriminating against workers based on their ages. These tactics can take several forms. Here are three common ways employers try to get around the law that the age discrimination attorneys at Swartz Swidler have seen in their clients’ cases.
Claiming a job is being eliminated
Some employers tell older workers that their positions are being eliminated when in reality, they are simply firing them because of their ages. This is a very common tactic used by employers to try to get rid of older workers. Employers will tell the older workers that their job titles are being eliminated. After the workers have lost their jobs, these employers subsequently fill the positions with younger workers using new job titles with the same duties.
Employers also might use layoffs as a way to get rid of older workers. While the law requires employers to publicize lists of all of the employees who were retained and laid off with their ages, some employers do not list the names and ages of all workers that were laid off. This tactic gives an incomplete picture of the strategies behind their layoff processes. Some employers might lay off a few young workers to make the optics appear better while attempting to hide the discriminatory motive.
Employers occasionally ask older workers to quit on their own and make offers for early retirement to get them to agree. While this can be tempting, you should be careful when your only alternative is to be terminated from your job. If that is the case, you might be the victim of illegal age discrimination.
Discrimination in promotions
Discriminating against older workers in promotions is also a common way employers try to get away with age discrimination. In this situation, a qualified older worker will be passed over for a promotion. Instead, the company will give the promotion to a younger worker who is less qualified and has less experience at a lower rate of pay. This type of situation is normally a clear example of age discrimination.
Age discrimination in job advertisements
Many job advertisements use coded language that discourages older people from applying for the positions. It is against the law for employers to explicitly advertise that they only want to hire workers of a specific age or young workers. Most companies are aware that advertising for applicants of a set age or age group is illegal, so they use other ways to communicate it by making indirect statements. For example, an advertisement might say that an employer is looking for digital natives, which is a phrase that implies people born in the 1990s to early 2000s. This group of Millennials and Generation Z members are called digital natives because they grew up with computers and the internet.
Others might advertise that they are looking for people who have no more than a set number of years of experience to attract younger workers while detracting older workers from applying. Some employers engage in microtargeting ads for jobs via social media to younger workers. This practice allows employers to pre-screen the audience for the jobs they advertise by making sure older workers do not see the advertisements.
Proving that an employer engaged in age discrimination through the wording of its job advertisements can be difficult. However, as more and more of these cases are filed in court, the case law should be updated to reflect these types of discriminatory strategies.
Consult with the age discrimination attorneys at Swartz Swidler
Age discrimination is a costly problem that can harm the ability of older adults to earn income. Many adults over the age of 50 do not have enough money saved for retirement. When they are pushed out of their jobs because of their ages, they might struggle to find new positions that adequately compensate them for their levels of experience.
If you are in this situation and believe that you were discriminated against based on your age, you should talk to an experienced age discrimination lawyer at Swartz Swidler. We offer free consultations and can help you to understand the situation and whether or not you might have a case. Call us today at (856) 685-7420 to schedule your free consultation.
