Older Americans report higher levels of age discrimination in the workplace, but it’s getting harder to prove in court

A woman behind a bar pours gin into shot glasses on a tray with shelves of bottles and glasses in the background
The AARP has found that women are more likely than men to say they’ve experienced age discrimination, and Black workers are more likely to say they’ve experienced age discrimination than white workers. Sarah Mason/Getty Images
  • According to the AARP, 78% of older workers saw or experienced age discrimination in 2020.
  • Proving age discrimination in court, however, is difficult and can take years.
  • A 2009 Supreme Court case raised the bar for what older workers need to prove in court.
  • This article is part of a series called “The Cost of Inequity,” examining the hurdles that marginalized and disenfranchised groups face across a range of sectors.

Mary Costa had been working at Cornell’s Irish Pub in Hopkinton, Massachusetts, for nearly 13 years when new owners took over in 2012. Before the sale went through, one of the new owners called Costa into the kitchen and asked how old she was. She was 62.

“You’re a good bartender,” one of the new owners told Costa. “I don’t think you’ve ever taken so much as a french fry. But you’re just too old.”

The new owner went on to tell other employees that Costa was “just too old,” and that she was “looking for a younger, different vibe,” Costa said in court documents.

Once the bar was sold, Costa was fired.

“For a couple of days I was just so upset and distraught and crying,” Costa told Insider. “And then I was, like, wait a minute, you can’t do that.” She went out and found a lawyer.

“Age discrimination is often considered a lesser civil right,” said Bill Rivera, senior vice president of litigation for the AARP Foundation. “We have far more comfort accepting stereotypes about older workers being more expensive or less productive or fearful of technology.”

And yet age discrimination against people age 50 and older cost the economy $850 billion in 2018, according an AARP report. The AARP came up with that tally by modeling the effects of lost jobs for older workers on GDP, wages, and salaries.

Older workers in the US are also reporting higher levels of discrimination at work than ever before. According to an AARP study, 78% of older workers saw or experienced age discrimination in 2020 – compared with 61% in 2018.

The pandemic has hit older workers harder than previous economic crises. In the past year, older workers saw higher levels of unemployment and faced greater difficulty getting rehired, according to the AARP and a recent study by the New School. Some of this may have been driven by health concerns, as COVID-19 has a disproportionate effect on older people.

There are three common types of age discrimination in the workplace, according to the AARP: an age-related firing; promotion discrimination, as a younger worker getting promoted over a more qualified but more expensive older worker; and hiring discrimination, whereby an employer might filter out older candidates using code words like “digital native.”

Age-discrimination cases make up about 21% of claims filed each year the Equal Employment Opportunity Commission, the federal agency tasked with enforcing employment laws. But that’s the tip of the iceberg. Many people don’t ever report discrimination to the EEOC, according to lawyers who spoke with Insider.

And many older employees have found it difficult to vindicate their rights in court even if they decide to file their own suits. In 2009, the Supreme Court made it even harder for workers to win workplace age-discrimination cases. In Gross v. FBL, the court said employees need to show the actions taken by their employer would not have happened “but for” the alleged age discrimination.

“If you are asserting age discrimination you’re going to be held to a higher standard of proof than other victims of discrimination,” said Eric Bachman, a Maryland employment attorney who formerly worked in the Civil Rights Division of the Department of Justice.

Some courts have interpreted this in a way that makes it hard for employees to win their cases, especially if they’ve been discriminated against in multiple ways, according to Rivera.

“If you have an older woman, and she alleges age and sex discrimination, that can be tricky for the plaintiff to demonstrate because you’re trying to prove that both age and sex played a role, but you have to prove that each of those was more than 50% of the cause,” he said.

The AARP has found that women are more likely than men to say they’ve experienced age discrimination, and Black workers are more likely to say they’ve experienced age discrimination than white workers.

Because of the Supreme Court’s Gross ruling, a lot of workplace-discrimination cases never make it past the “summary judgment” phase, where a judge can dismiss claims before they ever get to trial, according to Bachman.

Even if they do make it in front of a jury, older workers may still face biases. “A lot of people in that jury pool may just have a belief that with an older employee, they’re not going to be as productive as a younger employee, that their skills must be declining as they get older,” said Bachman. “The research on this issue shows that it’s just the opposite. Older employees are often the most productive in the workforce.”

There are some recent legal developments that could make it easier for certain older workers to sue employers for discrimination. Nevertheless, it’s unlikely that the cost, time, and effort of litigating an age discrimination case will change anytime soon. Litigating a case can cost tens of thousands of dollars and take years to be resolved.

“Let’s say you’ve been fired or let go, you’re older, you’re considering filing a lawsuit, but you also need to find another job, when you file that lawsuit in court, your name becomes searchable,” said Bachman. “Somebody Googles your name, and the first thing that pops up is that you sued your former employer.”

Rebecca Pontikes, the Boston-based civil-rights attorney who represented Costa, said many people who face age discrimination don’t ever bring claims against their employers because they don’t think it’s worth the effort.

“The barrier is, ‘I want to find my next job and I need people to hire me. I don’t want another black mark,'” said Pontikes. Workers closer to retirement may feel like they don’t want to bring any legal claims because it isn’t how they pictured ending their career.

After six years of delays, postponements, and legal wrangling, Costa finally got to trial against the pub. She lost the case, but she’s still glad she sued. “I don’t feel quite as much like a victim, because I tried to do something,” she said. “As hard as that six years was and as disappointing as it was, I think filing a suit helped me emotionally.”

After Costa lost her job at Cornell’s, she looked for other bartending jobs. Though she had three decades’ experience, she couldn’t find anyone to hire her. “When I would go back to certain bars where I had interviewed, sure enough behind the bar there was a beautiful 24 year old,” she said.

Costa eventually found work as a hostess, a job that paid significantly less because it didn’t include tips. Losing about $800 a week in tip income led her to move out of her apartment and delay her retirement. Now, at 72, she babysits part time.

She said, “It screwed up my whole plan.”