Age Discrimination in the Workplace – Employment Law Q&A

Published on May 9, 2017

Age discrimination in the workplace is becoming more of an issue and we have been counseling employers on federal and state laws, the elements of a claim, and ways to prevent discrimination in the workplace. Below is a brief outline to help you identify and avoid potential age discrimination issues with employees.

What is age discrimination?

Age Discrimination is an unlawful employment practice prohibited by federal and state law.

The Federal law that regulates age discrimination is called the Age Discrimination Employment Act (“ADEA”), which applies to employers with 20 or more employees. The ADEA was created in 1967 to encourage employers to hire older workers based on ability rather than age, preclude discrimination, and help create solutions for the issues often associated with an aging workforce.

The state law in Washington that regulates discrimination is called the Washington Law Against Discrimination (“WLAD”). The WLAD prohibits discrimination because of a person’s race, creed, color, national origin, sex, marital status, age (40+), disability, retaliation, sexual orientation/gender identity, honorably discharged veteran or military status, or use of a trained dog guide or service animal by a person with a disability.  Generally, the state law is considered to be broader than some federal law on discrimination.  It applies to companies with eight or more employees and employers in Washington must comply with both the federal and state law, if they are big enough.

Through these laws, employers can be the subject of a governmental investigation, and/or a private lawsuit filed by an employee.

What are the elements of age discrimination?

To establish age discrimination under Washington law, which is more protective than the ADEA, an employee must prove three elements:

• First, the employee must be 40 years old or older.
• Second, the employer has to have taken an adverse action. A number of actions constitute age discrimination besides termination, such as any disciplinary action, failure to promote, failure to hire, demoting, denial of certain benefits, etc.
• A third element requires that age was a substantial factor in the employer’s decision.

How do I prevent discrimination in the workplace?

Every company should have written policies and procedures regarding anti-harassment, anti-discrimination, anti-retaliation, how to make a complaint or report harassment/discrimination, and stating that the company is an equal opportunity employer. These policies should be in the employee handbook, on the internal company website, and accessible to all employees. All employees should sign an acknowledgment saying they received and understand the company policies. The policies should be as comprehensive as possible, covering compliance with all applicable laws, as well as practical information such as examples of harassment/discrimination, what to do in instances of harassment/discrimination, etc.  Policies should be reviewed regularly, at least annually, to determine whether they need to be updated.

Employee training is one of the best tools to prevent discrimination and harassment.  All employees should be trained on diversity, respect, anti-discrimination laws, harassment, sexual harassment, retaliation, reporting discrimination and harassment, and the company’s policies against discrimination and harassment.  Managers should receive extra training about supervisory responsibilities, investigation of complaints, retaliation, compliance with state and federal laws, etc.  All employees should sign a form stating that they took part in the training and understand it.  The goal of all training is to avoid or minimize workplace discrimination and harassment.  Providing employee training is also a useful defense in responding to complaints, charges, and lawsuits.

Additional resources:

What Employers Need to Know About the Age Discrimination in Employment Act (ADEA)

3 Laws You Should Be Aware of to Help Prevent Discrimination and Harassment

Discrimination and Harassment – Title VII and Related State Laws

If you find yourself needing more information, feel free to contact an attorney in the Employment Rights, Benefits and Labor Group at Ryan Swanson.

Britenae Pierce is an attorney in Ryan Swanson’s Employment, Rights & Benefits Group and can be reached at [email protected]. 

Shannon Lawless is an attorney in Ryan Swanson’s Employment, Rights & Benefits Group and can be reached at [email protected].