How to fight age discrimination in your workplace

Older Americans are being urged to repair their retirements by working longer. But it’s difficult to do in a tough economy, and one cause is illegal age discrimination by employers.

The number of age discrimination complaints filed annually with the U.S. Equal Employment Opportunity Commission, or EEOC, surged during the recession of 2008, and in 2012 it was still running 43 percent higher than it was as recently as 2000.

The economy’s health is a major driver of age discrimination claims, says Laurie McCann, a senior attorney with the AARP Foundation who specializes in age discrimination. “In an economic downturn, we’ve always seen older workers bear the brunt.”

The number of complaints may also be rising simply because so many older workers are remaining on the job. For example, the labor force participation rate among workers age 65 to 69 is 33 percent this year, up from 20 percent in 1993, according to U.S. Bureau of Labor Statistics data.

But the courts have not helped, either. A 2009 U.S. Supreme Court decision (Gross v. FBL Financial Services) increased the burden on workers to prove discrimination.

This month, the high court is expected to rule on another case that could make it even tougher to win discrimination suits. University of Texas Southwestern Medical Center v. Nassar is not directly about age – it deals with an allegation of workplace discrimination due to national origin. But it could have implications for age discrimination cases, too, because it could make it more difficult to win cases involving retaliation by employers against workers who complain to them about bias.

Age discrimination is illegal under the Age Discrimination in Employment Act of 1967 (ADEA). The law prohibits treating job applicants or employees who are over age 40 less favorably because of age. (The law applies to employers with 20 or more workers.)

In this week’s Reuters Money column, I explain how you can respond if you think you’ve been discriminated against in the workplace.