What evidence do I need to prove age discrimination in a hiring decision?

What the Law Says

The Age Discrimination in Employment Act (ADEA) prohibits employers from refusing to hire someone because of their age if they are 40 or older. To establish a claim, courts require plaintiffs to first meet a basic evidentiary threshold — known as a 'prima facie case' — before the employer must justify its decision.

Under 29 U.S.C. § 623, it is unlawful for an employer to 'fail or refuse to hire... any individual... because of such individual's age.' The law applies to employers with 20 or more employees and protects individuals aged 40 and older.

To make a prima facie case of age discrimination in hiring, you generally must show: (1) you are at least 40 years old; (2) you applied for and were qualified for the position; (3) you were rejected despite your qualifications; and (4) the employer filled the position with a substantially younger person — often interpreted as at least 10 years younger, though some courts look for a 21-year gap as strong evidence.

Once you establish this initial showing, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for its decision. If they do, you must then prove that reason is a pretext — meaning it’s false and that age was the real motivating factor.

Statutory Text

It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.

— 29 U.S.C. § 623(a)(1) — Prohibition of age discrimination

What to Do

Sources