Employers shall not discriminate against employees or qualified applicants based on their age. Pursuant to Title VII of the Civil Rights Acts of 1964, it is unlawful for an employer to discriminate based on an employee or potential employee’s protected class. Under both Federal and Wisconsin law (Wis. Stat. § 111.33), age is a protected class. That said, to bring an age discrimination claim, the employee (or applicant) must be forty (40) or older.
Despite their being legal protections at both the Federal and State (in Wisconsin) level against age discrimination, it still happens. In 2022, nearly “one in five workers over forty (40) and one in four workers over . . . sixty (60) [stated at some point they] have personally experienced age-related discrimination on the job.”
It is important to understand that age discrimination does not just happen in the hiring or firing process, but can include job assignments, benefits, training, and all other conditions of employment. Age discrimination can be harassment or bullying regarding the employee or applicant’s age, including jokes about retirement; being passed up for raises or promotions or other opportunities. In some instances, discrimination may include job postings where employers use terms such as “tech-savy” or “digital native” to discourage older applicants. The Age Discrimination in Employment Act of 1967 requires employers to consider ability when making their employment decisions, rather than making assumptions with respect to an individual’s age.
Wisconsin’s requirements for filing an age-related employment discrimination claim are as follows: 1) the employer must have 20 or more employees; and 2) the employee/applicant must be 40 years or older. Then, to prevail on the age discrimination claim, an employee or applicant must prove the following: 1) the applicant is qualified for the position they applied for or the employee is satisfactorily performing the job they are/were in; 2) there was an adverse action taken against the employee or applicant by the employer; and 3) a younger worker was selected or treated more favorable.
Under Wisconsin law, you have 300 days to file a claim. Please note, it is unlawful for an employer to retaliate against an employee for filing an age discrimination claim or participating “in an investigation, proceeding, or litigation under the ADEA.”
If you believe you have been discriminated against, or that you have discriminated against an employee or applicant based on their age, our skilled team of employment experts at OVB Law & Consulting, S.C. can help you navigate the process. Our highly skilled attorneys have experience on both the plaintiff and defendant’s side of employment discrimination claims. Our team also has experience advising businesses on anti-discrimination policies; thus, we can also assist with implementation of such policies to help mitigate the risk of age discrimination occurring. Contact our office today to schedule a consultation.
1 Title VII of the Civil Rights Act of 1964 | U.S. Equal Employment Opportunity Commission (eeoc.gov)
2 Fair Employment Law and Complaint Process (wisconsin.gov)
3 2022 Workplace Age Discrimination Statistics | SeniorLiving.org
