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New York City Law Blog

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What is age discrimination?

Age discrimination is might not be what you think it is. When talking about age discrimination in New York and New York City, you can sue at any age. You can sue for being rejected because you are too young. (Once at an interview, and often on the phone, people ask me “how old are you?” in the attempt to find out how long I have been practicing law). Tsk, tsk…One can ask about experience, but not age. But then human resource experts say that people over a certain age – say 55 – should downplay their experience to downplay their age. With age comes so many subconscious biases: over expectation of pay; overqualified; not “fitting in” with the younger culture. There is much discrimination on the basis of age over 55. Younger than 55, I find it depends on the corcumstances.

The federal law, the ADEA (Age Discrimination in Employment Act) does not apply to everyone. It only applies to those who are over the age of 40.

But that just means you can’t sue under federal law if you are not over forty. You can still use the New York City and State laws. All workers serve protection. Though the idea behind the Act is to help older workers avoid issues with employers who want to replace them with younger workers. Again, employers might prefer younger workers because they will take a lower pay, require fewer benefits and are perceived to work longer hours. Studies show otherwise. Having an anti-age discrimination law is supposed to prevent the elimination of older people out of the workforce. Realistically, the employer will find a way to get rid of you if it wants to. You will have to sue to obtain redress.

The Act protects you from discrimination in any aspect of employment, including hiring, firing, promotion, compensation and benefits. It also protects you against issues during training and assignments related to your age. Your employer also cannot consider age when determining the terms or conditions of your employment.

The law is a little confusing because it does not allow an employer to favor someone younger than 40 over someone who is over 40. However, the law does not prevent an employer from favoring one employee over the other if both are over the age of 40. So, for example, if you are 60 and your co-worker is 41. Your employer could favor your co-worker without fear of discrimination issues. This information is for education and is not legal advice.


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