age discrimination in the workplace

As numerous U.S. courts have found over a period of years in the 2010s, the case for statistics as evidence of age discrimination in the workplace is not clear cut. For instance, it might be alarming to see a substantial number of employees over age 50 be laid off from a company at one time; but drawing conclusions based on the ages of those laid off is unwise unless, at least, the ages of those not chosen for layoff are also known.  Further, aggregate statistics reveal nothing about a laid-off employee’s recent performance review or other factors that may have affected their individual selections.

That said, statistics play a key role in first objectively determining whether older workers comprise a disproportionately greater share of laid-off workers given the age distribution of laid off and retained employees. If it is shown that older workers are, in fact, not statistically more likely to be laid off than younger workers, it substantially undermines the claim of age discrimination. On the other hand, if statistics show that older workers are, in fact, statistically significantly more likely to have been laid off, simple statistics are not enough to prove instances of discrimination on their own.

Given that dynamic, here we will be exploring the place of statistics in workplace age discrimination cases with an eye to suggesting how Welch Consulting can proactively audit a firm’s employment practices to assess its litigation risk and help it avoid litigation entirely.

What Is Age Discrimination?

Age discrimination in the workplace involves an employer treating an employee unfairly because of his or her age. Age discrimination can be directed toward employees young and old, but in the contemporary United States, age discrimination claims are overwhelmingly related to “older” workers, those older than age 40, consistent with the Age Discrimination in Employment Act of 1967 (which forbids unfair treatment of employees aged 40 and older.)

Age discrimination, in theory, can take many forms in a professional setting, including in hiring, compensation, benefits, job responsibilities, promotions, and terminations. An employer might even be accused of discriminating against an older worker so frequently or intensely as to cause a significant decline in that worker’s productivity or career, leading to claims of harassment, a triable offense.

Rising Claims of Age Discrimination

With all that said, what do statistics actually tell us about the current state of age discrimination claims in the United States?

Multiple sources show that perceived instances of age discrimination are commonplace in the United States. In 2018, the AARP, the American Association of Retired Persons, reported the results of a survey in which 61 percent of people aged 45 or older claimed to have experienced age-based discrimination while on the job. To break down some specifics of that survey: AARP said that 16 percent of respondents believed their age prevented them from getting hired for a desired job, 12 percent said they failed to get promoted due to their age, and 7 percent claimed to have been laid off, fired, or otherwise separated from employment because of their age. Meanwhile, 33 percent of those respondents felt susceptible to future age discrimination.

Filed claims of age discrimination are also on the rise. In 2019, the Bermuda-based insurance company Hiscox released the results of an ageism study in which it found that the number of age-based discrimination cases filed with the Equal Employment Opportunity Commission by workers over age 65 had doubled between 1990 and 2017. The study also found that 44 percent of respondents said they personally or someone they knew experienced ageism at work, while 36 percent reported believing that their being over 40 had prevented them from getting new jobs.

What Can Statistics Say about Ageism?

Based on these observations, it is safe to say that allegations of age discrimination will continue to be a significant area of concern for employers, whether complaints are brought at the individual, or class, level.  But can aggregated statistics tell the full story behind incidents that may appear to be related to an employee’s age? No.

In order to be helpful, statistics must be paired with an understanding of employment outcomes involving more than the age of those affected—depending upon the allegation, it may relevant to know whether financial or operational considerations determined the areas affected by layoffs within a company; what experience, performance, education, or training differences existed between younger workers selected and older workers not selected in promotions, and so on.

When confronted with age discrimination lawsuits, different U.S. courts have arrived at different conclusions on the reliability, or role, of statistics themselves in those cases. For example, in 2018, the United States Court of Appeals for the Second Circuit in New York dismissed the age discrimination claim made in the case Benson v. Family Dollar Operations, Inc. Family Dollar employee Christopher Benson had asserted that his age was a factor in his employer demoting him to a less important position. He presented statistics to support his claim, saying that of the 41 employees in his department, only 13 had been promoted, and he believed his age was the reason he was not among those promoted.

In the end, the court dismissed the case based on these numbers because the sample size was too small to say that age discrimination definitively played a part in the decision. Furthermore, the court said, the statistics told nothing about Family Dollar’s rationale in making its promotions, such as the recent performance reviews of all employees.

Without additional evidence supporting the claim of age discrimination, the failure to present a robust statistical analysis that accounted for non-discriminatory factors that affected the decisions was enough to dismiss the claim in Benson v. Family Dollar Operations, Inc. In other cases, statistics may be only one component of the narrative to prove age discrimination.

Investigating Age Discrimination in the United States

As has been discussed, statistics can play a key role in evaluating claims of age discrimination, especially when statistics are paired with thorough investigations of the unique circumstances of the situation.

Of course, the ideal scenario is for an employer never to be sued for age discrimination, for this can involve paying out significant damages and garnering widespread negative publicity. Because differences in employment outcomes that appear to be adverse to older workers can happen without an employer truly realizing it, it is always better to proactively audit the effects of any proposed actions that could be construed as discriminatory before a triable case actually arises. Following a thorough data analysis, should litigation follow in any event, employers will know the strengths and weaknesses of their statistical case when planning a response.

For years, inside and outside counsel for firms across the United States have retained the labor economists at Welch Consulting to analyze their business practices and ensure they comply with employment laws throughout the United States. Let us examine the data around your human resources operations to recommend potential changes for your employment practices. It’s what we do for firms in nearly every industry in the country.

Contact Welch Consulting today to begin working with us to ensure a more complete understanding of employment practice outcomes.

U.S. Equal Employment Opportunity Commission
Benson v. Family Dollar Operations, Inc.
Pospis Law, PLLC
Psychology Today