Abstract
Although legal protections against age discrimination in employment have existed since the 1960s, age bias remains prevalent today in workplaces across America. In 2026, we are experiencing a profound change in the nature of work, driven by shifts in labor force demographics and the rise of advanced technologies. This article explores how age discrimination exposes employers to significant litigation risks even in a legal framework that poses challenges to older workers bringing these claims. The article also highlights notable trends and offers practical solutions to equip responsible employers with the competitive advantage of maintaining an agile and successful workforce.
Key Words
Age discrimination, age bias, legal framework, employment, workplace, hiring, retention, artificial intelligence, demographics, disparate treatment, disparate impact, multigenerational workforce
Age discrimination remains prevalent in workplaces across America. Despite legal protections that have existed for almost 60 years, formal complaints of age discrimination in employment have surged in recent years (EEOC, n.d.). AARP Research reports that 14% of adults 50 and older in the labor force said they were not hired for a job in the past 2 years because of their age (Choi-Allum, 2022). Among job seekers, about half said they were asked for their birth date during the application or interview process, and 53% said they were asked for a graduation date. And nearly a quarter of workers over 50 feel like they are being pushed out of their jobs in favor of younger employees (Swenson, 2026). Notably, these challenges are compounded for diverse older workers across race and ethnicity (Perron, 2026).
This article highlights the most significant legal barriers faced by older workers seeking to challenge age discriminatory practices and ongoing efforts to counter those obstacles. It also discusses notable litigation trends across the employment lifecycle—from hiring to firing—stemming largely from demographic and digital transformations occurring in workplaces across the country. To gain a competitive advantage in this rapidly evolving labor market, employers should consider practical solutions that not only avoid significant legal risks but also embrace age-inclusive policies that create opportunities to create more agile and effective workforces.
Older Workers Face Distinct Legal Challenges to Proving Age Discrimination in Employment
In a 1965 report to Congress, U.S. Department of Labor Secretary Willard Wirtz identified how age discrimination can be “very different” from race discrimination in that while the latter is usually rooted in “dislike and hostility,” age discrimination is based largely on unfounded assumptions about ability (Wirtz, 1965). Based on this seminal report, Congress enacted the Age Discrimination in Employment Act of 1967 “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment” (ADEA, 1967). More recently, the U.S. Equal Employment Opportunity Commission (EEOC) recognized that—after 50 years of enforcing the ADEA—age discrimination is more similar to race and other forms of discrimination because “all employment discrimination shares prejudices about the competence of members of the protected group” (Lipnic, 2018). Yet under either view, there is ample evidence that the ADEA falls far short of its intended purpose, and the most significant reasons for this failure are rooted in the statute itself and how courts have interpreted its key provisions.
Claims of age discrimination—like other forms of employment discrimination—typically arise under one of two legal theories: intentional (disparate treatment) and unintentional (disparate impact). Both approaches present unique obstacles for older adults in the workplace.
Sometimes, employers have neutral policies or practices—that apply to everyone—but that have a disproportionately negative impact on a protected group, such as people of a certain race, sex, or age.
To prove intentional discrimination under most employment discrimination statutes—like Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on race and sex—a worker need only show that discrimination was one “motivating factor” among others for an adverse action, such as termination. If the worker makes this showing, the burden shifts to the employer to prove it would have fired the worker anyway. The Supreme Court made this burden harder for older workers in a 2009 decision called Gross v. FBL Financial Services, Inc. (2009). Now, older workers must prove that age was the only reason for the adverse action. If the worker cannot meet this more onerous burden, the worker loses. To even the playing field, AARP has long advocated for passage of the Protecting Older Workers Against Discrimination Act, which would reverse the 2009 decision and restore strong legal protections for older workers (LeaMond, 2025).
Sometimes, employers have neutral policies or practices that apply to everyone but that have a disproportionately negative impact on a protected group, such as people of a certain race, sex, or age. These “unintentional” claims are also treated differently under Title VII and the ADEA in several respects making it harder for older workers to prevail in these cases. Under both statutes, a worker must show that a facially neutral policy or practice caused a significant, disproportionate adverse impact on a protected group. The ADEA requires that older workers isolate and identify the exact policy or practice to a greater extent than employees must do under Title VII. If the worker makes this showing under either statute, the burden shifts to the employer. To prevail in Title VII cases, the employer must prove that its policy or practice is job related and consistent with business necessity—a relatively high standard. However, in ADEA cases, the employer need only show that the policy or practice was based on a reasonable factor other than age, a more employer-friendly standard that can almost always be met. Finally, under Title VII, even if an employer has shown that its policy or practice is job related and consistent with business necessity, the worker may still prevail by identifying a less discriminatory alternative policy or practice that the employer refuses to adopt. In 2005, the Supreme Court, in Smith v. City of Jackson (2005), held that this approach is not available to older workers under the ADEA.
In addition to these divergent burdens, some courts recently have ruled that the ADEA’s disparate impact provision applies only to current employees, not to job applicants (see, e.g., Kleber v. CareFusion Corp. (2019); Villareal v. R.J. Reynolds Tobacco Co. (2016). AARP and its charitable affiliate, AARP Foundation, continue to confront these restrictive statutory interpretations in Congress and in court, respectively, with the goal of providing older adults with greater access to challenge seemingly neutral hiring policies and practices that disproportionately exclude them from positions for which they are qualified. But obstacles remain.
In 2025, the EEOC decided that it would no longer investigate or enforce any employment discrimination complaints based on the disparate impact theory even though the protections still reside in the ADEA and the other statutes it administers (Savage & Olson, 2025). This development further harms older adults by forcing them to bear the high costs of private litigation to prove that they have been discriminated against in the workplace.
While age discrimination is not uncommon, these distinct challenges make formal reporting and pursuit of legal remedies rare. Even when older workers decide to take action to challenge unfair practices, their access to the courts is increasingly being displaced by ineffectual mandatory arbitration agreements. Oftentimes, these agreements limit workers’ ability to obtain the necessary evidence to prove their claims, contain bans on class or collective actions that might defray costs to individual workers, and benefit employers who use “repeat player” arbitrators. But perhaps most important, arbitrations—unlike lawsuits—are conducted in secret and the results are kept confidential. For this reason, AARP reports that 69% of adults 50+ support legislation to make forced arbitration for age discrimination claims illegal (Perron, 2025).
Employers Encounter Significant Litigation Risks Unless They Embrace Age-Inclusive Practices
The ADEA protects against age discrimination in all phases of the employment lifecycle, from non-selection to termination. The advent of artificial intelligence (AI) and other advanced technologies are rapidly and significantly changing the nature of work, causing many employers to focus on younger people who they view as “digital natives” and thus more tech-savvy. But the labor force is also shrinking, and many people are living longer and seeking to enhance their skills and abilities to extend their careers, making the legal protections against arbitrary age bias all the more important. This section highlights the most significant challenges and opportunities faced by older adults and businesses engaged in today’s workplaces.
Employers using targeted job advertisements or AI tools to streamline and improve their recruitment and hiring practices should ensure that they are not creating arbitrary obstacles to employment for older adults.
Recruitment and Hiring
Employers are increasingly using AI and algorithmic tools throughout the recruitment and hiring processes. While the intent may be to increase efficiency or lower costs, the effect may create and perpetuate biases that disadvantage older adults. Older job applicants are often told that they are “overqualified” or “not a good fit” for many positions for which they are interested and qualified (Suder, 2020). While the ADEA is an imperfect statute, it still poses significant litigation risks that should prompt employers to scrutinize their recruitment and hiring practices to avoid engaging in age discrimination.
In some instances, employers appear to be transparently discriminating against older adults. For example, in 2024, AARP Foundation brought an age discrimination in hiring case on behalf of a cybersecurity professional and similarly situated individuals against RTX Corporation for using job advertisements that restricted job applicants to new or recent college graduates or to those with less than 2 years of work experience (Terrell, 2024). According to the complaint, the plaintiffs allege that RTX automatically rejected older applicants even while the ADEA has a provision against using job advertisements that express age-based preferences and the EEOC has a regulation stating that announcements limiting jobs to new or recent college graduates violates the statute. The case is ongoing.
Earlier in 2022, the EEOC sued iTutorGroup alleging that the company programmed its hiring software to automatically reject female applicants age 55 and older and male applicants age 60 and older, in violation of the ADEA (EEOC, September 2023). According to the complaint, iTutorGroup rejected more than 200 qualified job applicants based on their age. The case later settled for $365,000 and directives that iTutorGroup stop requesting applicants’ birth dates.
But the leading case on the use of AI tools in recruitment and hiring is Mobley v. Workday, Inc. (2023). According to the complaint, the plaintiffs allege that they made numerous applications for jobs for which they were qualified using the Workday platform and were repeatedly and automatically rejected for all jobs—sometimes within minutes of submitting their online applications. Accordingly, the plaintiffs assert that Workday’s AI-powered screening processes have a disparate impact on older job applicants under the ADEA and state anti-discrimination laws. Workday has repeatedly moved to dismiss the plaintiffs’ complaint asking the court to adopt a narrow reading of the ADEA that bars job applicants from bringing disparate impact claims. In February 2026, AARP and AARP Foundation filed an amicus (friend of the court) brief in the case, urging the court to hold that the statute permits job applicants to bring disparate impact claims (AARP Foundation, 2026). The court agreed and denied Workday’s motion in March 2026, so the case continues.
Employers using targeted job advertisements or AI tools to streamline and improve their recruitment and hiring practices should ensure that they are not creating arbitrary obstacles to employment for older adults. Responsible employers are conducting technological and other audits to ensure compliance with federal and state anti-discrimination laws and regulations. Additionally, some employers are proactively rejecting age-based stereotypes and discovering that many older adults want to be upskilled and reskilled and are as adaptable to change as their younger counterparts if given the opportunity to fill new and rapidly changing positions in the workplace.
Retention and Retirement
As many workplaces grapple with technological transformations and demographic shifts, employers must remain both agile and unbiased to effectively manage the onslaught of disruptions to the labor force on the horizon. The ostensible obsession with the next generation causes many employers to fail to leverage the longevity advantage, pushing out workers in their 50s and 60s—before they are ready to retire—when they are still capable of making meaningful contributions to the workplace. During these tumultuous times, employers would be wise to recognize that successful ADEA lawsuits can result in significant monetary damages, harm to business reputation, and (perhaps worst of all) less skilled and successful workforces to meet increasing demands.
A recent case out of Texas is a good example of what can happen when an employer expresses subtle preferences for retaining and developing younger employees. In Dabbasi v. Motiva Enterprises, LLC (2024), the plaintiff alleged that he was terminated because of his age in violation of the ADEA and other federal and state laws. While the plaintiff had received mixed reviews during his employment with Motiva, he was also told that he had the technical knowledge for the position and was given the company’s President’s Award on three occasions. Indeed, research shows that workers age 50 and older are closing the technical skills gap with their younger peers, debunking outdated assumptions about older workers and technology (Terrell, 2025). In any event, Motiva decided to fill its open positions with “early-career, high potential employees” and told the plaintiff that he was a “poor fit” and that it instead wanted to “rotate younger people” into the company’s promising positions. The court found that Motiva’s conduct reflecting preferential treatment of younger workers constituted sufficient evidence to create genuine issues of material fact precluding an early judgment in the employer’s favor.
By adopting age-inclusive policies and practices, smart employers are rejecting age-based stereotypes about aptitudes and abilities and instead embracing diverse, multigenerational workforces.
Other times, an employer’s motives are more overt. For example, according to the complaint in EEOC v. Fischer Connectors, Inc. (2022), Fischer Connectors—under the direction of its new chief executive officer (CEO)—made plans to systematically eliminate all older management and sales employees and replace them with a new, younger workforce. The director of human resources (HR) witnessed the CEO making dozens of discriminatory, age-related comments about current and potential employees. The HR director then witnessed Fischer Connectors repeatedly turn down qualified older workers in favor of less-qualified younger employees and forcing older upper-management employees out of the company under the guise of “job eliminations.” Notably, when workers over 50 are let go, they experience unemployment for longer periods of time than their younger peers (U.S. Bureau of Labor Statistics, n.d.). When the HR director questioned the personnel actions and attempted to educate Swiss executives about anti-discrimination laws in the U.S., she was fired and replaced by two significantly younger individuals. Under the consent decree resolving the lawsuit, Fischer Connectors was forced to pay $460,000 in monetary damages to the former employee, train all of its U.S. employees and managers on the ADEA, distribute updated anti-discrimination policies to all employees, post a notice about federal anti-discrimination laws and employee rights in the workplace, and allow the EEOC to monitor how it handles future age discrimination complaints (EEOC, February 2023).
For financial and other reasons, older adults are working beyond their planned retirement age. Yet many employers continue to push them into retirement against their will—and against the law. According to the complaint filed in EEOC v. J&M Industries, Inc. (2024), a company manager questioned an employee repeatedly about retirement as she approached her 65th birthday, including directly asking her, “When are you going to retire,” “Why don’t you retire at 65,” and “What is the reason you are not retiring?” After telling the company she had no plans to retire, the company informed the employee her position of purchasing agent was being eliminated due to economic uncertainty. Less than a month after firing the employee, the company hired a man in his 30s as a new purchasing agent, the same position the company claimed to have eliminated. Under the consent decree settling the lawsuit, J&M Industries agreed to pay the former employee $105,000 in back pay and liquidated damages, conduct training, revise its policies, and post a notice affirming its obligations under the ADEA (EEOC, 2024).
In a labor market deeply affected by digital transitions and economic pressures, employers should widen, not shrink, their talent development pipelines. In addition to taking active steps to increase their technical skills, many older workers are keen to learn new skills and bring strong leadership and mentorship experience to the table. By adopting age-inclusive policies and practices, smart employers are rejecting age-based stereotypes about aptitudes and abilities and instead embracing diverse, multigenerational workforces, harnessing their power to create agile teams with higher productivity levels and lower turnover rates (Sheen, 2024).
Conclusion
Significant changes in labor force demographics, advanced technologies, and the market economy have employers scrambling for opportunities on how to gain a competitive advantage in the workplace. Recognizing and remediating the way age bias influences hiring, development, and retention could be the key difference. Age discrimination in any of these areas can lead to time-consuming and costly litigation even under a legal framework that poses challenges for older workers bringing these types of claims. By proactively addressing age bias in any form, employers can obtain ready access to the skills, experiences, and agility needed to build and sustain successful multigenerational workforces now and in the coming years.
Louis Lopez, J.D. & LL.M., is Vice President of Litigation at AARP Foundation in Washington, DC.
Photo credit: Shutterstock/Andrey_Popov
References
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