Since when is 40 old?

I am in the process of re-writing an interviewing training class. I looked on the EEOC’s website for accurate numbers for 2010 settlements and was a bit surprised to see ADEA out of court settlements at $93,600,000. Age Discrimination settlements come as the second highest dollar amount after Title VII.

Yet age discrimination is much harder to prove, it hinges on the “but for” standard, meaning the accusor must prove that their age was the reason they were not selected. So why is it such a substancial issue? Is it class action suites? Do employers find it easier to settle than fight?

And as a creep up to 40, I wonder are people really discriminated against when they turn 40? Should the ADEA be ammended to protect people at another age maybe 50?

What are your thoughts?

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Terrence (Terry) Hill

As someone who is turning 55 this year, I too think that 40 is very young for claiming discrimination. I’m thinking that in 1967, when ADEA was enacted, maybe 40 was a logical breaking point in discrimination cases, but I would agree that 50 would be a better benchmark for discrimination than 40. Of course, it would take an act of Congress (literally) to enact this change, so this is just a theoretical debate among friends.

David Dejewski

I agree with Andy. 40 is the new 20. 🙂

Probably the best time to start a second career – only much more capable / experienced than the first go round.

Corey McCarren

So “age discrimination” applies only to those 40 years of age or older? I always figured it meant any age, now I know!

David Dejewski

I don’t think there’s a starting age. My armchair lawyer (unqualified) hypothesis is that one might also be discriminated against because they’re considered too young. I imagine age discrimination to be discriminating against someone (i.e. not offering them a job or promotion) based solely on age as a criteria. If I dismiss someone as eligible for a job because they are 30, I would be discriminating based on age. If, on the other hand, I dismiss a 30 year old candidate because they can’t show enough documented experience, I am not age discriminating.

I avoid the issue all together by not asking a person’s age when I hire them. I don’t want to know.

Robert Wuhrman

I’m loving being 40; the perfect combination of having had a ton of experience (soft and hard skills), energy, and may the Lord be willing, plenty of time left to use it all. Maybe I’ll feel even better at 50. Stay tuned.

Jerry Rhoads

I would venture to say we are exposed to age issues on a daily basis. Think about it you have to be 18 to vote, 21 to drink, at 25 your insurance goes down, Senior citizen discounts, and retirement communities for 55 and up. I think we are conditioned to to assign values (good or bad) to age. SO is 40 to young to be considered age discrimination? Well I am in IT and 40 –in some circles I am considered old! If I were fired from a job because of my age –that would be discrimination.

Dorothy Ramienski Amatucci

Man, I hope 40 isn’t considered old (says the girl who turns 30 this year)! But I agree with Jerry … our society has weird obsessions and relationships with different ages. I don’t know how it is for men, but I constantly see magazine and blog articles and ads for products that will make me look “younger” (and, yes, these articles are aimed at women my age). Personally, for me, old is a state of mind. Let’s hope that’s still the case for me in 10 years!

Kristy L. Stewart, SPHR

@ David D. I feel the same, I don’t ask. And yes young people have their problems with employment because more experienced people apply.

@Corey – yep at age 40 by federal law. States could set up different standards but when the state and federal standards conflict the standard that gives the employee the most protection wins, so states could only go younger in this case, which would be in my opinion ridiculous.

@All – we seem to be agreeing that 40 is a low standard, but my initial question still stands, why are ADEA settlements so common? I’d love to hear any theories because I truely don’t know the reason for it. And I don’t see an act of congress (as Terry so perfectly put it) changing the ADEA any time soon, although they certainly should. 40 is no longer the discrimination point! Perhaps IT is an exception, given the rapid change intechnology. But I’d argue that it is not age it’s a lack of knowledge at issue, people can certainly keep up with the changes at any age, we all have to learn to stay on top of ever changing work issues.

Philippe Vermeulen

they are, although as you say: it is never done openly and visible. And maybe, it’s not so directly linked to age itself but to seniority, the fact of being around for quite some time, having lots of experience and know-how-to instead of know-how: workfloor proven experience instead of bookish knowledge. This make an older worker/ civil servant a potential threat to all young(er) managers and bosses.Question is: can you protect older people? And to be protected by settlements or coercive rules? The only answer is: deal with them in a constructive, rewarding way acknowledging their skills and “tricks” so that they can keep on serving the state and the public. And you’d better be prepared to do so if one is looking at the stampeding ageing of the workforce

Julius J. Diggs

@David, that is an excellent point. 40 IS the new 20…of course, the job market seems different than it was 20 years ago.

@Kristy, IT should not be an acception. I’ll be 40 in December and yet, I’m still more than capable of keeping up with burgeoning tech while maintaining what’s current. That I don’t do it as much as I used to is only because I no longer feel the need to go out and get the newest and latest.

Tom Savoie

As I approach my mid 40’s I really hope this is not happening. I have heard that is harder to land a job when you are in your 50’s and 60’s.

Robert C. McCauslin

Believe the reason for the quantity of ADEA claims to be primarily one of the perception (frequently correct) that the individual selected for a position/promotion doesn’t have equivalent experience to the individual leveling the claim. In a side by side comparison, if this can be proven, the FLSB tend sto attribute to age discrimination based on cost of older employees. Not a whole lot different than the whole argument with the Colts plans to release Peyton Manning based on cost despite what his experience and skills have meant to the organization.


EEO, if you know what you are doing ? you could neutralize it! I face discrimination due to my national guard status and my last complain was racial andmy x boss neutralize my complaint! It is hard sometimes to prove discrimination!

Andrew Krzmarzick

I’m almost 37 and starting to feel “old.” But I’m not! In fact, I look at my 40s and 50s as likely being the best years of my career due to more experience, more established productive methods and routines, etc. I really respect folks who are that age now and bring their depth of wisdom and experience to the fold.

But here’s the catch: folks in their 40s and 50s (and beyond) need to be committed to ongoing growth and learning. Where I think more seasoned employees get in trouble (and can be the targets of discrimination) is when they talk about “the way it’s alway been done” and “I know more than you because of my experience.” They need to be learners first and foremost – reading on the newest developments in their area of expertise (and those tangentially related) as well as asking/listening to newer members of the workforce to understand emerging trends.

In my opinion, stagnation is the real reason folks are at risk for getting labeled and left out…

Keena Cauthen

My husband is a 4)-something male trying to find a job after having been laid off of his last job (contractor, and his company didn’t get the new contract, so… no jobs for him). What a number of the employers are giving as a reason he isn’t being hired is he’s too experienced for the job they are posting. He’s been out of a job since November, applying for at least 5 jobs a week (often times more) and so he’s aware that some of the positions he’s applying for are not offering the salaries he’s made in his last jobs. Yet time and again he hears that he’s too experienced or that they can’t match the salary he was making previously. I’m starting to think that the “too experienced” is another way some of these companies are saying he’s too old. Wouldn’t you want to hire someone with experience (even if more than basically required) for a job or are we as a society so set on hiring the most minimally qualified person in the hopes of keeping them in the position longer? My husband is willing to take a more entry-level position in an attempt to work his way up with a company, yet no one seems willing to give him the opportunity.

To answer the main question, I do think that you are seeing more age related discrimination cases because, as Philippe stated, we have younger managers and bosses who will bring their own ideas and prejudices to play on the age issue and which may see the more experienced employees as a threat, or as unwilling to change, or as dinasours set in their ways. (These are all things I’ve heard from co-workers describing 40+ employees, of which I’m one.)

Dennis Snyder

There are, in fact some discontinuities. FAA limits commercial passenger pilots to age 60 but Social Security won;’t allow them to retire until 62 for minimum and 66 for max benefits. I believe Customs and other law enforcement is also set at 60 for retirement. So there’s a gap between forced retirement and when you can collect the benefits of that forced retirement.

Mark Hammer

The Canadian Public Service Employee Survey asked about various bases of discrimination in the workplace in the last 4 federal employee surveys. The 2011 results are to be posted probably some time within the next few days, but you can see the 2008 results here:

Scroll down to Question 75E for relevant numbers. Note that the N’s are smallish (“only” in the thousands)because people only got to answer that question if they indicated earlier (Question 73) that they had been a “victim'” of discrimination. You’ll see an interesting U-shaped function, with both younger and older employees voicing the perception of discrimination on the basis of age.

We asked about a number of different bases for discrimination, and age was the most frequently nominated form, largely because everybody HAS an age, it’s visible, and it’s often different from others.

I started my PS career late (way too much grad school), and have no plans to ever retire. But I am the same age as many colleagues who ARE retiring, and look it; enough that I am regularly asked “So, how many more years/months before you retire?”. There is a lot more mileage left on my power-train warranty, but I often can’t help getting the feeling that folks look at me and think there will be very low return on investment. Particularly as an increasing proportion of those in senor and middle management become younger than me.


Yes this is definintely a problem in government, especially in IT orgs that glamorize and glorify youth as being on the “cutting edge”. I’ve filed charges. It is a very difficult path that requires an attorney, witnesses and many different parallel processes and investigations to be successful. I am in what is known as the informal complaint phase, and should have my answer in a week as to whether or not I will have to file a formal complaint. It is extremely unpleasant, but well worth it, especially for those of us who have long term careers and are nearing retirement. The financial compensation goes up quickly, so it behooves the Agency to settle out of court, especially when the complainant has a solid case, as I feel that I do. You need to document everything, and show that the adverse actions by management were directly linked to age.

Katherine Ryan

I agree with @David Dejewski. It is silly that only “older” workers are a legally protected group. There is plenty of age stereotyping and biases toward younger workers too. This kind of negative bias toward younger employees is not only ignored legally but typically culturally rewarded. When was the last time you heard an older co-worker (or even a middle-age coworker) disparage younger workers’ “poor work ethic”? And then didn’t the rest of the older people in the room all but break into applause in agreement? (By the way, the Family and Work Institute (2005) found both that workers overall are working longer hours than in the past and that there are no differences between the hours worked by Millennials and Gen Xers at the same age (18–22). What’s more, Millennials work more hours than did Boomers at the same age, in 1977). If the law is going to make age a legal issue– isn’t it only fair that they expand to include all age groups that could be subject to employment biases on the basis of age?

Kathy Nelson

I work in Aging Services, so the thought of 40 being old is extremely comical. We have people in their 90’s still taking public transit to the Capital Building to advocate or working 20 a week as Sr. Companions or at Sr. Centers. Most of our executive management is in their 60’s and 70’s and have no current plans to retire. I suppose the 40 pressure depends on focus. As Andrew referred to, If you’re focused on growth then age doesn’t count.

Change and growth should be acceptable on a shared table–with shared tools. The aging population is the fastest growing population of computer users in the world. An 80 something “Tweeter” once shamed me into learning how to twitter. Who was the old one there? And yes, I’m in my 40’s and I’ve enjoyed every laugh line I’ve earned–and I’m referred to as the “kid”. And I’ve learned a lot working in Aging Services about what Andrew was talking about. We’ve clashed on a bumpy road mixing our young and old populations. However…we are taking the tools, technology and enthusiasm of the new worlds and enfusing it with the wisdom, simplicity and one-step at a time of the tried and true populations and we’re making some great progress together. It’s the people who say no, who won’t try something new, who hold the organization back that really look and feel “old”.

Faye Newsham

With all that said, I have seen descrimination creeping in (I’m 45) over the last few years, but it may be more focused on women than men at that age range. I don’t color my hair and have quite a bit of grey. I’m also working with folks 1/2 my age (the youngest was only 18 months older than my oldest child recently). I don’t fear for my job, but I’ve had it for 10 years. I hear comments about cutting or not cutting my hair and coloring it “its so much more profesional colored and cut”… particularly in the IT field where I’m talking to and about “stakeholders” who are in their 20s. For my part, I’m currently in grad school to make sure I’m really, really up to date on my skills and knowledge. The legal stuff is beyond me but I can say I’m seeing it in practice with my cohorts. I worry that if I were unemployed that I would have to make the decision to color my hair just to “act young”.

Ann McFarlane

I am 59 and have lived (and worked) thru the times “they” told me they wanted a man for a position, or I didn’t get a job because I was married and my husband worked, so the man needed the money more. What I see now in age discrimination is the rejection of requests for conferences and/or workshops to keep my skills up, and the word budget pops up. But the younger employees have no problem getting authorization. So, I figure the next steps will be my skills will be diminished, it will reflect on my job and I may be out the door. In this economy they probably could get someone with less experience, for less money for my position. However, those savings may be outweighed by any claims brought, right?

Janina Rey Echols Harrison

I am here to tell you that it does exist. It shouldn’t. Age has nothing to do with creativity, innovation, keeping up with technology. (My mother is 85 and is wireless, does her own computer repairs. I forced her to get a computer 10 years ago, now she is a tech junky. My father uses it for writing stories. They have Wii and Netflix.)

If I didn’t have to put the years I worked in particular companies on my resume it might help. But some of those companies went away in mergers or buy outs. Some interviewers don’t recognize the names. I’ve changed careers many times (show me the money.) I have been a purchasing agent, contracts administrator, programmer, systems developement, full charge bookkeeper, systems administrator, lan administrator, technical writer, office manager, drafting. I put together a start up company from scratch and ran it successfully for two years for absentee owners. % of people who have run a complete company? or set up from zero? Not many.

You can learn anything at any age. But there are too many people out there who have too narrow a view of life and life experience. I know they are discriminating because they say things during the interview that indicate they are looking at dates on the resume. Things like, “you did that in such and such year, how do you think that relates to technology now?” “Do you have retirement plans?”

Those types of comments probably happened in conversations with plaintifs which was why they won the settlements. I recently had a person detail into the head of our department ask me when I was considering retiring. I probably should have filed an EEO.

I don’t think there should be an ‘age’ for age discrimination. Some young people who are brilliant are overlooked for jobs because they are perceived as too young and inexperienced.


I’m 40 and all I hear in my office is how I’m a young whippersnapper (and therefore inexperienced I guess). Even though I have more and varied experience than a lot of others. Many of the managers have kids near my age, so it’s hard for them to see me as an adult, even though I have gray hair! Maybe I just look really good for 40? Ha ha ha ha…

Sometimes I think it’s really a way to marginalize and diminish the group of us coming up from the rear. I try to ignore it, but it’s pretty obnoxious if truth be told. If we did the same to them, it would be offensive. When they were 40, they had a career path, there were promotions happening, and they were moving up. Us 40s are so painfully stuck these days it’s not funny. We can’t move ahead of the non-retiring generation, and are getting passed over for the late 20/30s for new opportunities. Young or old, it doesn’t matter which way it is when progress comes to a complete halt. I believe there was an article in the WSJ lately about this problem. It’s not unique to government.

Kristy L. Stewart, SPHR

@ Ann M,

I do not know if your company has looked into this but there is a movement in progressive organizations to use reverse mentoring. Where the new tech savvy hire and the experienced person with all the company knowledge have a partnered mentorship. The new person ups the technology and helps train you while you return the favor by sharing the vast company knowledge you have.

I hear you about the gender issue, as late as 1999 I was told a female could not be the manager on second shift because they close the shop & could be jumped in the parking lot. A man cuold be too, but there was the perception woman were more vulnerable. P.S. I hired a woman and two other women to be leads – we broke the production record. I hired by qualifications but yes, there was and to some extent still is a gender bias and an old boy’s club that rears up now and again. Oh and the funniest thing is I have mentored two people on the job in the last few years, I mean really detailed mentoring & given their age they really did not know and struggled to believe there was a time when gender defined you or race or some other non-work related item.

Robin Shoberg

Yes there is discrimination for people over 40 & 50. I have applied for serveral jobs that I was more than qualified for and they selected people much younger than 40, at the time of the job openings I was 45 and 50. I cannot prove the discrimination but when it happens more than twice you start to wonder.

Kristy L. Stewart, SPHR

@ Sonya – I hear that a lot about the lack of respect for younger employees. And how hard it is to manage someone who looks at you like a kid. I guess I am blessed at the City of Cedar Rapids. We have a wide age range here in HR and it literally makes no difference. People like the ones who pitch in and dislike those who spend too much time on personal stuff. The only real age issue & it’s barely an age issue is dress code. Some of the mature employees have issues with how the younger people dress. But then I am 37 & I have an issue with some of the more revealing outfits too it’s pofessional for me not those kids now a days…

Kristy L. Stewart, SPHR

@Janina – the interview question you mention is completely unexceptable. Shame on them! My training spends a good deal of time on age bias (both sides of the coin). We expressly forbid even remotely age related questions. My example is always, Oh I see you went to Iowa State, so did I what year were you there? You can see how this could be a bonding type question but it is prohibited because it can reveal age. Given you nkow a general age when you are looking at a person across the table, but still any interview question related to age is unaccetable. Court cases do hinge on written notes, e-mails and spoken word. I would make a note of what was said and date it. Things do not change when we let them go. Be your own advocate for change and awareness. Thank you for sharing this real life experience with us.

Kristy L. Stewart, SPHR

Kathy – amazingly well put, thank you for your thoughts. I will admit I don’t twitter…but then I hated the beeper when it came out, then the cell phone I was a hold out because guess what I don’t want to be reachable off hours! I want to sleep and play with my kids…now I am a twitter hold out. My coworker tweets our jobs to the followers of our City. But there is very little I care enough about to get a twitter feed on.

Kristy L. Stewart, SPHR

Katherine, i hear you, in many ways I agree. Although I have never stood silent when an age issue was raised. I know there are people who do, out of fear or someother desire to fit in or not be the one to say something. However and this is purely opinion to me it would be darn near impossible to prove age discrimination for a person who is young. It is not that it isn’t hard to find a job – it is, but to win an age discrimination suite you have to prove that age was the deciding factor period. And the problem with younger people is they would be hard pressed to say their age was the reason, because experience and age go hand and hand. If the person who was hired is more experienced than you there is no case. You might get lucky and have someone say something really dumb that you could make a case out of, like if they said you’re too young we want an older person yeah you would have a case. But it would literally have to be so blatant that it is impossible to refute.

Kristy L. Stewart, SPHR

I’d like to point everyone to Mark Hammer’s comments, the table link he provides is informative & interesting – but I’m a stats nerd!

Also Keena has identified a different issue that is in my opinion a much bigger problem than age discrimination but not necessarily the same as age discrimination if that makes sense. The decision not to interview a person because they made too much money, or are “over qualified” is honestly quite stupid. I tell my boss who I admire very much for her abilities and knowledge that if She (in her 50s with director level experience making twice he money I do) and I applied for the same mid level job, the employer would be an idiot not to pick her. If an applicant takes the time to apply they are interested. But one thing that I think is very wrong with employers is they do not post salaries much in the private sector, which would be your husband’s area I think, and then they don’t know he is willing to work for the lesser amount or they assume he will bail out as soon as the economy rebounds. THERE IS NO SUCH THING AS OVER QUALIFIED. Yes I yell that from the mountain tops every single time a supervisor goes to exclude a person on that basis. I hope he finds something soon. And I encourage my HR cohorts to also stand up and proclaim there is not such thing as over qualified – on it’s own it is no reason not to hire.

Kristy L. Stewart, SPHR

@Robert – good point, @ julius, I didn’t mean to imply IT people have a justified age issue, if you read the last line, I do say although it might be an exception (meaning more discriminatino seems to be there) it is not an age issue it is a knowledge issue & you can learn at any age. So one clarifying prior statment & 2 cudos to you for being on top of it.

Anita Arile

I’m beginning to wonder if I’m being discriminated upon here on my side of the world (GovGuam).

As a “late college bloomer” (I got my BSPA in 2008, followed by my MPA in 2011), I feel like age is a factor in my pursuit of middle or mid-higher management level positions.

I have years of exerience and training, yet preference is for those “fresh out of college”… I never understood that (“fresh out of college”), wasn’t I “fresh out of college” also?

I can go on-an-on ramping and raging, but *sigh* it’s usually me yelling in a canyon… 🙁

By April, I will be the same age as the SuperBowl. I have over 18 years of Public Service (including non-profit leadership) on my record; YET, my classmates (most young enough to be my children) are quickly bypassing me in securing higher-paying positions! WHY???

Kristy L. Stewart, SPHR

Anita, what you are saying does not make sense to me but I have never been to Guam so I do not know their politics. When are you being cut from the candidate pool – do you get interviewed? If not is there something on your applications or resume that could be a red flag. You would be amazed at what can throw a red flag up on an application or in an interview. Again I don’t know Guam but even at the worst employer I’ve worked for we would pick experience + education over education alone. UNLESS there was reason not too.

Jerry Rhoads

What if you were discriminated at for being too young? Say you didn’t get the job because you were 40 and they wanted someone who was 50? What if you had the same qualifications and years of experience. When age is a factor in making a hiring decision is it discrimination?

Janina Rey Echols Harrison

Thanks for your response Kristy. This certainly became an animated discussion. I am usually not as concerned about issues that I have to deal with and I certainly don’t want to work for someone who would put forth such a questions at an interview, so I wouldn’t pursue it and didn’t take the jobs. Where I was concerned was a person who thought he had a chance at being my boss was asking when I intended to retire. He didn’t get the job, but he is a coworker and he burned a lot of bridges. Not just with me.

You can make people go to training to avoid inappropriate comments or questions. Too many leave training with the idea that it is meant for ‘other’ people. Or maybe they just aren’t trainable. How many people come to you for ‘coaching’ just prior to an interview so they aren’t inapprpropriate? How many EO complaints for your department/agency? Would an email reminder every day with a ‘don’t do this’, just like safety/JHAs, help? Now that could actually help save taxpayer money!

I just hate that I have to watch these scenarios taking place and can’t walk up to someone and just say, “You stupid, stupid person. You are going to cost the government (taxpayers) sooooo much money.”

Anita Arile

The politics here is like “dog-eat-dog”… that’s one reason many graduates leave the island and pursue jobs on the mainland.. I have submitted my resume to the “Rock Your Resume” section here in GovLoop and it really helped me revamp my resume…

The current administration believes that youth over age is the “in thing” and it really lowers moral in the workplaces.. I wonder if it’s a tactic to get the 30+year employee to retire, but its affecting the less-than-20yr employee too.. *sigh* I keep thinking of that shiny ring around that dark tunnel… 🙂

Kristy L. Stewart, SPHR

@Janina: actually what I did & incourage all HR people to do is I logged al complaints. I used them as a tool to make training mandatory, as you rsaid people often think their are the exception & do not adhere to trainign. A few complaints later (and I don’t mean EEOC complaints I mean candidate complaints) And with a trend analysis of turnover I was able to gain buy in from most of the departments I work with to be on their interview team and regardless of if I am there or not before an interview occures we send out e-mails requesting the question list to the supervisors, reminders and to the candidates they receive a notice that out line the first two questions are yes or no only, we mail them the job description so they can read it completely and then the first question is always Are you able to perform the essential functions of this position with or without accomodation? Through the process we’ve buildt our turn over has reduced every year. People have a good understanding of what will occur in the interview and who will be there. And interviewers realize HR adds value to the process. It took 4 years and I am still fighting with 2 departments. But statistics, trending and putting a dollar amount in for turnover can be pursuasive to the big dogs. Since I have been here in this role we have not had a sucessful claim against us in any way related to hiring.

Kristy L. Stewart, SPHR

@ Jerry – as far as I am aware, unless some states have implemented state specific laws, there is no protection for youth. The ADEA was created to protect people over 40 from forced retirements, target lay offs that select the top earners (due to longevity at the company) and perceptions of inability due to age. If you do not get the job at age 40 but they hire someone who is 50, it is not a case anyone would touch. Rule of thumb is you don’t have an age discrimination issue if they hired someone over 40, uperhaps if you were 60 and they hired a 40 year old you could try to make a case, but with 40 being the cut off I doubt it. Tat is one of the reasons the law should change, 40 simply is not old and because the law offers the same protections to a 40 year as they do a 70 year old it in effect (opinion here) does not protect the correct age ranges. Not being hired because you are young, was discussed earlier on, and because youth often = less experience a case for discrimination at 18 or 20 would be unrealistic.