Age Discrimination — When Everyone is a Protected Class

EEOC and Age Discrimination in the Workplace

As the average life expectancy of human beings increases, so does the average work expectancy of your workforce.  It’s no secret that the recession changed how we view our talent and development strategies.  People are working later into their lives.  Boomers and Traditionalists are working long after the average retirement age either in a new career, part time, or in their current career path. I’ve written a lot here about social media discrimination, but for a moment let’s talk about age discrimination in the workplace.

As a member of the Cusper Generation, I sit directly between the X and Y generation.  It’s safe to say that I have a few years before I will become a member of the over 40 and protected workforce.  While this topic doesn’t affect me personally, it will affect my family.   My husband celebrates his 40th birthday in just a few months.

Age Discrimination Lawsuits: EEOC & Age Discrimination

Simply stated, our workforce is getting older.  So it makes sense that the EEOC is seeing an increase in the number of age discrimination claims. Age discrimination lawsuits in 2009 cost employers $72.1 million.  Investigating discrimination claims like age discrimination, are a current focus for the EEOC, who has increased their staff by over 440 workers since 2007.   As the workforce ages, it’s logical that age discrimination claims would also increase.  Age expectancy is also increasing in the United States.  In fact, the DOL now predicts that life expectancy will increase from 76 in 1993 to 82.6 years in 2050.

What is Age Discrimination?

As the average age of a worker also increases, the idea of what constitutes age discrimination will have to also change.  Meaning that since we are getting older, the age considered a protected class must also increase in number.  Because without the change, the older workforce will no longer be considered the minority.  The DOL also estimates that in 2035 the median age in the United States will be 39.1 an increase from 35.5 in 2000.

Until the Age Discrimination in Employment Act is amended, this will continue to be a growing issue for organizations across the U.S.  The key to creating a productive, engaged, and happy workforce is through continued communication, dialogue, training, and growth and development programs for the many ages, skills, and experiences of your ever-changing workforce.

Age discrimination lawsuits will continue to increase.  Clashes, challenges, and obstacles between your younger and older workforces will also continue.  In the next 10-15 years, if the age of this protected class isn’t increased, nearly 40% of your workforce will be squarely placed in this protected category.

It’s a scary time to be in HR.  This also means that the field of HR, isn’t going anywhere any time soon.

This article is part of the Conversation Culture Series.  Through training, conversations, and honesty in the workplace, we can engage, motivate, and retain our linchpin talent within an organization. Click on the graphic below, to see the entire article collection.

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Jessica Miller-Merrell

Learn more about Jessica Miller-Merrell, SPHR, SHRM-SCP, the founder of Workology, a workplace HR resource, and the host of the Workology Podcast. More of her blogs can be found here.

Reader Interactions


  1. Kara says

    Taking an optimistic view here: Perhaps the increase in over-40’s in the workforce can help diffuse some of the existing stereotypes.

    • Jessica Miller-Merrell says


      I hope so. The new workforce needs to learn how to work with all groups regardless of age, size, background, religious preference and so on. Maybe this more mature workforce, is just what we need. . . then again you never know.


    • Jessica Miller-Merrell says

      Agree Chris! But the reality is that discrimination is still happening in the workplace. Age discrimination claims are sometimes hard to prove especially for job seekers. Unless of course, a hiring manager happens to leave a comment on an application that says, “Too old.” This is exactly what happened in a case I was involved in as a HR Manager. We promptly settled and the organization focused on interview training for managers.

      Thanks for the comment!


  2. chris aka newresource says

    Jessica, that is my point, writing “too old” is a homerun. That is a no brainer, one would think anyway. So that case was necessary. Again I say don’t discriminate. Now I know its not that easy however, if HR and managers take a little time to setup correct processes you can eliminate employees and hire others without any discrimination, based on merits, weights and measures. Then if someone files a case, you can better show your reasoning for making your decisions. Its hard work, but it can save you money in the long run.

    • 99er says

      So you’re saying don’t hire us old folks, but be smart about how you discriminate? Wow.

      • Jessica Miller-Merrell says

        Sorry @99er that’s not what I’m saying or Chris is saying at all (included Chris since you replied to his comment directly). I’m just saying that the large majority is going to be a protected class with regard to the over 40 crowd. Then this group is no longer a minority and thus, not a protected class if things stay the same.

        I’m in favor of hiring the most qualified regardless of their protected class.


    • Jessica Miller-Merrell says

      Agree with you Chris. Unfortunately, the reality is that many middle manager HR professionals are just a small cog in the wheel which is where I was at my company when the “Too old” post it note happened. I was not in a position to make a change to the organization outside of suggesting that we train our managers within the region on interview do’s and don’ts. Of course, now things are different with social media. Hopefully someone will read this at an organization and make a big change.

      Just saying don’t discriminate is like saying don’t speed. It happens whether we like it or not. Yes, we should train people on the things not to do and the reasons why they are wrong. The entire whole is a bigger problem than you or me. Kind of like recycling. Can one person make a difference? I say yes but it’s a long road.

      Thanks again for your comments! Enjoying the banter and discussion on here with you.


  3. Blair Sollenberger says

    Whether or not discrimination suits increase has less to do with whether actual discrimination occurs but rather pivots on whether employees FEEL they have been discriminated against. The higher the percentage of protected class employees you have, the more likely someone is going to feel they have been unfairly treated. It follows that the more protected-class employees you have, the more HR must build its employee relations plan to ensure that employees feel heard, that they are considered to be of value to the organization and they have a fair shot at advancement in directions that they want to advance. As you said Jessica, the role of HR becomes more critical as the workforce progresses into the protected age category.

    • Jessica Miller-Merrell says

      Amen, Blair!

      If I was a gambler, I’d bet that age discrimination claims would increase because the odds are in favor of that occurring. It’s up to HR and organizational leaders to make a decision if the issue is an important one for them to focus on. Most won’t until it bites them in the ass.

      I worked at Home Depot after the consent decree in the 1990’s. The company reacted and changed their methods, policies, procedures, and priorities not because they had too.

      Read more about it . . .

      Thanks for the comment!


  4. Kay Stout says

    From my side of the fence – – a Boomer (kind of). I’ve faced more discrimination as a female, than for my age. But, truthfully, I do not apply at companies where 80% of the workforce is 30 – 45 – – seriously – – they’re not likely to hire me – – so I see know reason to beat my head against their brick wall.

    Discrimination is a wiggly word that causes havoc in the workplace when it becomes part of an employee’s personnel file. The first lines of defense are interviewers/recruiters who are willing to honestly appraise WHAT the applicant says and WHAT they’ve written on their resume; then be given the trust by upper management to move to the 2nd/3rd interview – however many steps involved in the hiring process. AND managers/ employees who’ve been trained (and agree) that they will strive to the hire the most qualified, regardless of gray hair/wrinkles/tattoes/ holes in their ears. The more rigid the hiring process, the greater chance for discrimination. Hiring is a fuzzy/gray world.

    For many who feel they’ve been discriminated because of age – – I often wonder if the scowl on their face, the frown when they answered the question and/or their attitude during the interview cancelled any chance of getting hired. When I hosted a radio show and got a call, usually from an older man, who sounded grumpy ON THE AIR. I knew, in part, why he was having trouble finding a job. No one knowingly hires Oscar from Sesame Street….it goofs up the work place.

    For many, if you can find the smaller company who really NEEDS your expertise – it is easier. Frequently, fast-growing/entrepreneurial companies appear to have their own, unwritten, culture . I’d rather find a job with a different company than fight the battle.

  5. Blair Sollenberger says

    I had to smile at 99ers comment. The backside of all employment protection legislation is that employers may think twice before hiring someone they will have more difficulty terminating (or create some potential liability if they do). Any hire carries a certain amount of risk that the employee, once on board, will not work out and need to be terminated. While every ethical recruiter does his/her best to find the best qualified candidates for the employer to make a final decision, it is unrealistic to think that employers would not weigh potential liability into the equation when they choose to whom they make an offer. While there are good reasons for establishing protected classes, there is likely to be some benefit to not being counted among them.

  6. Dean says

    In a lot of ways, this is now a tempest in a teapot. The only class that’s not protected anymore is straight white males under 40 without piercings or tattoos. Since there are few of them these days, let’s not worry if someone is or isn’t in a protected class when hiring or firing. Let’s just hire the best person for the job, who isn’t a clone of everyone we already have. And if we have to let someone go because of performance, the rule is document, document, document, and document again, just to be sure. If we’re letting someone go for a reason other than performance, then be fair to them. Again, protected class or not shouldn’t make a difference. If employers act like this, there wouldn’t be any lawsuits with merit.

  7. Kay Stout says

    Dean – had to chuckle. My youngest is a white male, under 40…and we’ve had interesting discussions about this very subject. He’s also seen people who were hired to meet minority/diversity percentages…not because they were the best candidate. Documentation helps cover you if there is litigation, and your last 3 sentences sum it up nicely.

    Ultimately, life isn’t fair……I think time/energy is better spent moving on rather than battling it out in the court room (unless there’s grounds for class action because it is rampant throughout the company).

    Great discussion – thanks Jessica



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