Say, for example, your supervisor says something about you "being a little more accident prone these days because of age." Or, that he’s not going to bother teaching you the new computer system because, "It’s tough teaching an old dog new tricks." These comments, if they bother you--even if they’re innocent--can and will be interpreted by a court of law as "inherently discriminatory based on age," says John Rappoport, attorney and author of The Employee Strikes Back! (Wellington Press.)

Age harassment is part of age discrimination law and is treated in the same legal manner as sexual harassment. In a court case, a 49-year old employee claimed he lost his job because, for one, he was harassed by his bosses who said that, ‘"Guys 40 years old are too old to work here." Even though the bosses said they meant no maliciousness, the court said, too bad, and ruled in favor of the dismissed worker," cites Rappoport.

Now, with so many layoffs and workers over the age of 40, the question of age discrimination is being raised more often. One thing is very clear about getting older and holding down a job: If you’re over 40 and the company tries to fire you, they had better have strong evidence that they didn’t boot you because of your age, he says.

Age discrimination claims include hiring, promotions, demotions, discharges, transfers, denials of jobs, downgrading of positions, compensation, benefits, training, and more and more--denial of pension funds. "Courts really dislike seeing an older individual lose out when vesting of a pension is within shouting distance," he says.

But an employer can legally limit a job to workers of a certain age if it can prove that age is a critical factor in performing that job. The company has to show that nearly everyone over the age in question is unable to perform the duties of that job safely and efficiently and that some older workers have traits that keep them from doing that. This can be tricky, says Rappoport.

In a case in Wisconsin a few years ago, a county required police officers to retire at 55, saying the work was too strenuous and dangerous for cops over 55. Some police fought back on grounds of age discrimination. The courts decided that to say any officer over the age of 55 can’t handle the job any more was wrong and struck down the law as discriminatory.

So if you think you’ve been wronged should you sue? It’s time-consuming, costly and, no matter how strong your case, unpredictable as to how it will turn out. It’s emotionally draining and once the word gets out, former associates may treat you like a pariah. Not to mention that your work record, even extracurricular activities, will be in the spotlight. "Any business skeletons you might have in the closet won’t stand a ghost of a chance of staying hidden," says Rappoport.

On the other hand, juries tend to side with the underdog and may let their feelings dictate their decisions, he adds. Some decide to teach the corporate community a lesson by imposing huge awards. Courts are looking down on unreasonable tactics, imposing their own views of fair play.

If you’re game and think you’ve got the evidence, the next step is to find an attorney. Ask people for referrals to workplace attorneys or firms that specialize in employee rights. Check with your state or local fair employment practices commissions, local bar association or www.nela.org (National Employment Lawyers Association) and Law.com.

Just keep in mind that while you’re focusing on this, you’ll be distracted from job hunting or working, which means you’re not moving towards your future.

© by Andrea Kay