Discrimination based on age is prohibited. A vivid example of the age discrimination would be termination; failure to promote or offer in-house position available; harassment (comments like you are too old; can people at your age still …; somebody at your age should…; “we need younger energy here…” etc.). Federal law protects workers of 40 years old and older, and the company / employer has to have at least 20 employees. New York State law and New York City law provides age discrimination protections to an employee at 18 years old and older (one can be discriminated due to a young age: for example, failure to promote…), and the size of the company which can be found responsible for age discrimination starts at 4 employees and more.
Age discrimination can be found when a job advertisement contains age restrictions; or when an employment application contains a question about the age or date of birth. In such cases an analysis is needed to see if an employer has a legitimate business purpose for such inquiries, or is trying to discriminate against potential employees.
An employee, to prove age discrimination has to show that her age was a but-for cause of the adverse action, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009) (addressing ADEA claim). It is a tough standard, as an employee has to show that it was definitely age that motivated the employer.
The possible damages that are available for an employee who was found to be a victim of age discrimination often may include future earnings. It is so, because depending on age, an employee may have hard time finding a new employment position. Such damages, however, are often provided for only three years, and not for the duration of an employee’s life, as many would think. In any event, an award of future earnings is rare and in most cases requires testimony of an economic expert.