Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing

Age discrimination is a hot topic these days. A blog post in Forbes entitled, Is There a Lawsuit Here? Five Tips for Older Job Seekers, piqued my interest. While the article was certainly informative, in my opinion, it contained certain misconceptions.

First, the article claimed that “proving you’ve been deprived of a job or laid off to sweep the path for younger and cheaper workers isn’t easy to do” and “is darn near impossible.” To be clear, age discrimination is generally no more or less difficult to prove than discrimination based on gender, race, or any other protected category. Whether or not proving age discrimination is “impossible” will truly depend on the facts in each case. There is some indication, however, that age discrimination claims are potentially less difficult to prove since many jurors will be able to relate to the plaintiff or someday imagine themselves in the plaintiff’s predicament. Consider the following statistics compiled by Jury Verdict Research:

In 2008, age discrimination victims prevailed in 67% of all trials across the country — as compared to a win rate of 53% for disability discrimination cases, 52% for race discrimination, and 60% in sex discrimination.
In 2009, age discrimination tied with sex discrimination cases with a win rate of 57% — as compared to 47% for disability discrimination and 52% for race discrimination
From 2003 through 2009, age discrimination claims filed in state court received the highest median award at about $332,000. The next highest median award was in race discrimination cases, which came in at about $289,000

As any employment law attorney (regardless of whether they represent management or employees) will tell you, the cases with the strongest evidence of discrimination generally settle before trial. Therefore, the statistics above are likely based largely on cases where the employer thought it had a good chance of winning. Overall, the statement that proving age discrimination “is darn near impossible” is (at best) too large of a generalization.

Second, the article states that “[a]n employer can ask you how old you are. They shouldn’t, but they can.” While this may be true in certain states, its not the case in Massachusetts. As the Employment Discrimination Guidelines make clear, Massachusetts employers can only inquire about a prospective employee’s age in very limited circumstances:

Generally; the only proper question is, “Are you under 18, yes or no?” Questions about age may be allowed if necessary to satisfy the provisions of a state or federal law (for example, certain public safety positions have age limits for hiring and retiring). Also, if the Commission has previously identified age as a bona fide occupational qualification for the position.

An employer that violates this regulation by asking a prospective employee his or her age, when prohibited from doing so, indicates that the candidate’s age is a factor in the hiring decision. Massachusetts courts have held that such forbidden inquiries serves as powerful evidence of discriminatory animus.