As baby boomers continue to work past retirement age, age discrimination lawsuits are becoming more common. Two out of three workers between ages 45 and 74 say they have seen or experienced age discrimination, according to AARP. However, experiencing it and proving it are two different things.

The federal Age Discrimination in Employment Act (ADEA) forbids employers with 20 or more employees to discriminate against people who are age 40 or older. The law prohibits an employer from discriminating in hiring, firing, wages, job assignments, promotions, or any other aspect of employment. It is also illegal to harass employees based on their age.  (Your state may have its own laws regarding age discrimination as well.)

If you believe you have been the victim of discrimination, the first step is filing a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the claim and determine if the evidence shows that discrimination has occurred. If the case isn’t settled, the EEOC can sue the employer who discriminated or it can give the employee or job applicant the right to sue the employer.

Providing evidence of discrimination is the difficult part. Direct evidence of discrimination–for example your boss telling you he is firing you because you are too old—is very rare. Instead, the signs are usually more subtle. Evidence of discrimination could include the following:

  • Your employer makes frequent comments about your age
  • Your performance reviews start going down as you get older
  • You are disciplined for behavior that younger employees are not disciplined for
  • Younger employees are getting hired and promoted more frequently than older employees
  • You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments

The fact that your employer replaced you with a younger worker, or an employer hired a younger applicant, isn’t enough to prove discrimination. You need to show a pattern of behavior. The U.S. Supreme Court didn’t help matters by ruling in 2009 that plaintiffs must meet a higher standard of proof for age discrimination than for other types of discrimination.

Suing for discrimination can take a lot of time, effort, and money. You need to decide if it is worth it. Rather than going straight to a lawsuit, it may be possible to use evidence of discrimination to negotiate a better deal with your employer.

3 Keys to Building Your Case

  1. First Key is to Keep a Diary of any Negative Comments. If you feel you may be the victim of age discrimination, it is a good idea to keep a log of any comments that appear discriminatory. You should also contact an attorney who specializes in employment law and have him or her review any documents you receive from your employer before you sign them.
  2. Second Key is to Keep Records. Actions of discrimination are based on your performance reviews that demonstrate trends of lowering reviews as your age. What solutions are offered in these reviews? Have you asked for any assistance during the review process? How have those been met?
  3. Third Key is to Keep Logs. Keep logs of general hiring and promotion records. If the trends are that younger employees are being moved up in promotions faster than older employees this is a great indicator of discrimination.

Perceptions of being treated unfairly is not enough when alleging Discrimination. Proving discrimination is difficult and must be based on documentation. Emails and direct statement from an employer is rare. Your personal efforts to document the unfair treatment over a period of time is crucial in proving your case.