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In the U.S., employers are prohibited from discriminating against workers 40 and older because of their age. Workers have these rights regardless of their immigration status. 

What is age discrimination, or ageism?

Discrimination occurs whenever a person is treated worse based on a personal characteristic like their race, gender, religion, disability, or age. In the United States, it is illegal for your employer to discriminate against you because you are 40 or older.

Age discrimination, or ageism, frequently originates from stereotypes around the competency of older workers. Prohibited age discrimination in the workplace can take the form of harassment, being disregarded for training opportunities, and/or being excluded from pay raises. Age discrimination is also prohibited in hiring recruitment, including in job postings. This means that it is illegal to only recruit workers under a certain age, or to post job ads seeking only younger workers.

Even though age discrimination in employment is illegal, unfortunately it is common: 20% of adults over 50 report that they have experienced age discrimination.

Legal protections against age discrimination

In the United States, the Age Discrimination in Employment Act of 1967 (ADEA) protects workers over 40 from age-based discrimination if their employer has more than 20 employees or they work for local, state, or federal governments. 

The ADEA prohibits employers from discriminating against older workers in their hiring practices, compensation, or training. Employers are not allowed to mention age specifications on their job postings and cannot ask you for your date of birth during pre-employment inquiries. Lastly, employers are prohibited from retaliating against you for opposing age discriminatory practices. 

It is always a good idea to check the laws in your state in addition to federal laws. States may have stricter standards than federal law that place greater obligations on your employer. For example, California’s Fair Employment and Housing Act’s (FEHA) prohibits employers with 5 employees or more from discriminating against you based on your age. In New York, state law prohibits age discrimination by employers of any size. 

In addition, state laws also sometimes have longer filing periods, additional remedies, and different standards of proof. In some cases, state laws may prohibit age discrimination even against workers under 40, like in New York.

What if you think you are experiencing age discrimination?

Always make sure to document everything carefully. Note details like the date, what was said, and the people involved. This can help you prove what happened. For example, save any texts or voicemails from your employer discussing your age, disciplining you or not disciplining younger workers, or only promoting or training younger employees. Make sure to document all of these incidents. 

If you think you are experiencing age discrimination, you should talk to a lawyer with experience in age discrimination claims.

If you have any questions about your rights as a worker, don’t hesitate to reach out to Centro de los Derechos del Migrante (CDM) from Mexico by calling: +52 55 9661 6771 or from the US by calling: +1 (667) 217-5738.

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