by Steven E. Abraham
Age discrimination isn’t just about fairness — it’s also a legal risk.
As a business owner in New York, you must comply with both federal and state laws that prohibit employment discrimination based on age. These laws are similar but differ in important ways.
The Age Discrimination in Employment Act of 1967 protects individuals aged 40 and older from employment discrimination. It applies to employers with 20 or more employees, as well as state and local governments, labor organizations and employment agencies. Under the ADEA, it is illegal to discriminate based on age in any aspect of employment: hiring, firing, promotions, pay, job assignments, training, benefits, layoffs — anything employment-related.
The ADEA also prohibits harassment based on age if the harassment is severe enough to create a hostile or offensive work environment.
Disparate Treatment vs. Disparate Impact
Most employers are familiar with disparate treatment — when an employer intentionally treats someone differently because of their age.
Fortunately for businesses, in order to win a claim of discrimination under the ADEA, a plaintiff must show that age was the “but-for” cause of the negative employment action — for example, that she was discriminated against solely because of age. If the employer can demonstrate that there was another reason for the employment action, the claim will fail.
For example, if an employee is discharged and can prove that age was one of the reasons for the discharge, if the employer can prove that the employee was discharged for legitimate reason (poor performance, excessive absenteeism, etc.), the claim will be dismissed.
Sometimes, employers may adopt policies that affect the entire group of workers protected by the ADEA. For example, an employer might have a mandatory retirement age or might refuse to hire individuals above a certain age. In these cases the policies could be challenged as disparate treatment under the ADEA because they discriminate based on age.
There is a narrow exception, however, called the Bona Fide Occupational Qualification (BFOQ) that might protect the organization in these situations. A BFOQ allows an employer to consider age if it’s reasonably necessary to the normal operation of the business. If an employer can prove that it is necessary to impose a policy that treats older people differently, that policy can be defended as a BFOQ.
In addition, the ADEA also allows claims based on disparate impact — where intent doesn’t matter. In an article in the June/July 2025 issue of Oswego County Business Magazine, I discussed disparate impact claims under title VII of the Civil Rights Act of 1964. Disparate impact claims can be brought under the ADEA as well but there is a slight difference between the two laws.
Disparate impact occurs when a policy looks neutral on paper but disproportionately affects workers aged 40 or older. For example, targeting the “highest paid” employees to cut costs may disproportionately remove older workers, because higher pay often correlates with longer tenure. Requiring applicants to have graduated within the last five years can screen out most older applicants. Or if a company chooses to recruit exclusively at college career fairs, it likely would have a disparate impact against older workers because it would limit the chances of older candidates from learning about or applying for the job.
Fortunately, it is easier for employers to defend against disparate impact claims under the ADEA than under title VII. Recall from my earlier article that employers can only defend against disparate impact claims under Title VII if they can prove that the policy is necessary for the job. Under the ADEA, the employer only needs to show that the policy is “reasonable” and that will be an acceptable defense. It is much easier to show that a policy is “reasonable” than that it is necessary.
Nevertheless, employers would be wise to review policies, hiring criteria and layoff plans for hidden impacts on workers over 40. If a policy might affect older workers more, be sure you have a clear, documented and reasonable business reason. And always keep written records explaining your reasoning in case you need to defend it.
The New York State Human Rights Law also prohibits age discrimination and is broader than the ADEA in several ways. First, the NYSHRL protects workers aged 18 and older, not just those older than 40. Also, the NYSHRL applies to employers with four or more employees, while the ADEA only applies to organizations with 20 or more.
Another difference between the ADEA and the NYSHRL is that the ADEA doesn’t prohibit reverse discrimination, while the NYSHRL does. So for example, if an employer hired an applicant who was 55 years old and refuse to hire an applicant to was 45 years old, even if the 45-year-old individual could prove that she was not hired because of her age, that wouldn’t violate the ADEA. Again, it is acceptable to favor older individuals.
The NYSHRL, however, does prohibit reverse discrimination. And as mentioned earlier, the NYSHRL protects individuals 18 and older. Therefore, employers must be careful not to discriminate against an individual because the individual is “too young.” Employers should be aware of this difference.
The table below illustrates some differences between the ADEA and the NYSHRL
So as a good practice, you should avoid decisions in hiring, firing, promotions, training or benefits based on age, jokes or remarks based on age, neutral policies with hidden impact on older individuals.
Also consider removing age-related language from job postings.
Again, following both the ADEA and NYSHRL isn’t just about avoiding lawsuits — it’s about building a workplace that values employees of all ages.
Compliance helps protect your business from costly litigation and fosters a stronger, more diverse workforce.
Steven E. Abraham is a professor in the school of business at SUNY Oswego. He also has practiced labor and employment in New York City.
