Think you are facing age discrimination? Don't get bitter, do this.

By Morey Stettner

You're over 40 and laid off. Is it age discrimination?

Six in 10 workers 50 and older have seen or experienced subtle forms of age discrimination at work, according to AARP.

When U.S. Supreme Court Justice Potter Stewart tried to pinpoint what constitutes pornography in a 1964 obscenity case, he wrote, "I know it when I see it."

You may feel the same way about age discrimination if you sense younger workers are advancing at your expense.

When workers in their 40s and older are laid off or demoted, or face cuts in their hours, they may suspect age is a factor. Their employer's explanation may sound dubious.

Yet from a legal standpoint, age discrimination is hard to prove.

"Employers have gotten really good at disguising anything that can be seen as discriminatory," said Jacquelyn James, founder of Boston College's Sloan Research Network on Aging & Work. "They've been warned, coached and sued. Their HR [human resources] departments are very aware of these things and very involved in how a layoff is presented to employees."

Age discrimination has become prevalent in the workplace, even if it's hard to prove. Six in 10 workers 50 and older have seen or experienced subtle forms of age discrimination at work, according to AARP.

Read: Opinion: Ageism is corporate self-sabotage - America's 'brain drain' is costing shareholders billions

Where you work plays a role. Based on the number of age discrimination complaints filed with the federal Equal Employment Opportunity Commission from 2020 to 2024, the top 10 hot spots for complaints per 100,000 eligible workers are Washington, D.C., Arkansas, Mississippi, Tennessee, Nevada, Georgia, Pennsylvania, Illinois, Alabama and North Carolina.

Is it happening to you?

If you work for an organization with hundreds of employees, check to what extent any staffing cut or reduction in hours occurs "across all ages," James said. Older individuals should not be disproportionately affected (in legal parlance, this is called "disparate impact").

On an ongoing basis, monitor your employer's messaging to the workforce. What signals is it sending?

If you keep hearing that your organization seeks "quick, agile, imaginative, technically proficient" staffers, that's a potential red flag. "It's all those negative stereotypes of older people," James said.

Other code words that may indicate age discrimination include employers' references to wanting workers who show "adaptability" and "future potential," said R. Scott Oswald, managing principal of The Employment Law Group, a Washington, D.C.-based law firm.

It's the difference between objective criteria (such as education prerequisites or certifications required for the role) and subjective factors (such as whether you are a good "cultural fit").

It's tough to prove age discrimination if layoffs strike workers across the board in multiple departments, with cost-cutting as a clear imperative. Then there's the threat of smart machines supplanting smart humans.

"AI is moving through organizations and the culture at lightning speed," James said. "It is also taking a lot of jobs."

What to do if you suspect age discrimination

As an employment attorney, Oswald counsels many clients who feel their jobs may go away. If they are let go, ask: Did the need for work go away-or did just you go away?

"Follow the [job] duties," he said. If the job description remains the same while you've been cut loose, that's another red flag.

While you can't prevent age discrimination, you can take steps to protect yourself. Maintaining a detailed written record of your interactions with higher-ups and peers is critical.

"You should document everything you see and hear that seems fishy," James said. "If a boss or colleague says, 'We've gotta get old geezers out of here,' write it down and note the date, time and place."

After performance reviews or other meetings with HR (or your supervisor) about your role, organizational changes or future plans, send a memo summarizing the discussion and listing key points. Keep a file of your memo and your employer's reply.

"If no one responds but they're in a position to correct you, that's a bad look if they later say they never got your memo," Oswald said. "That's pretty damaging in front of a jury. [The employer's] silence can be viewed as assent in a jury trial."

There are subtler ways employers can hold you in disfavor due to your age. You may be excluded from joining internal or external committees, miss out on key strategic planning meetings or not be trained on new technologies that the organization invests in.

Documenting such occurrences can bolster your allegation of ageism. Just make sure you don't become so aggrieved or embittered that you let it affect your job performance.

One of the best ways to establish a paper trail to strengthen an age-discrimination claim is to express in writing your unwavering commitment to your organization's mission. Years of glowing performance reviews aren't enough; you also want to show that you have always cared deeply about what you do, why you do it and your employer's positive contribution to society.

If there is a trial, you'll want to make a vivid impression on lawyers, judges and compliance officers. As they read your long-ago emails and memos, you want your years of hard work, passion and loyalty to your employer to jump off the page.

-Morey Stettner

This content was created by MarketWatch, which is operated by Dow Jones & Co. MarketWatch is published independently from Dow Jones Newswires and The Wall Street Journal.

(END) Dow Jones Newswires

06-04-26 1456ET