Proving Age Discrimination at Work

Age Bias Isn’t Always Obvious, But It’s Always Harmful

Maybe the shift started small. You weren’t invited to a meeting you used to lead. Your role stayed the same, but your responsibilities quietly shrank. Or you were passed over for a promotion, again, while a less experienced colleague moved up.

It’s easy to question yourself. Was it really about your age? Or just workplace politics? But if you're over 40 and starting to feel sidelined, your gut may not be wrong. Age discrimination at work isn’t always loud. It doesn’t always come with a slur or an email you can print out. But it is real, and it’s illegal.

At Horn Wright, LLP, our employment law attorneys work with people across New York who’ve been quietly pushed out or overlooked because of their age. We’ve helped them gather proof, file complaints, and take meaningful action. If something feels off at your workplace, let’s talk about what you can do next.

Signs That Discrimination Is Happening Behind the Scenes

Age bias doesn’t always come with a paper trail. More often, it shows up through patterns, shifts in tone, or double standards that only become obvious when you step back and look at the full picture.

Some signs might include:

• Being passed over for key projects or leadership roles despite your qualifications
• Younger employees receiving perks, bonuses, or opportunities you were denied
• Comments about your “retirement plans,” “energy level,” or “keeping up”

In New York, both federal and state laws prohibit this behavior. Under the Age Discrimination in Employment Act (ADEA), 29 U.S. Code §§ 621–634, it’s unlawful to treat someone 40 or older less favorably based on age. Meanwhile, the New York State Human Rights Law (NYSHRL), N.Y. Exec. Law §§ 290–301, extends protection even further, covering smaller employers and permitting claims regardless of whether age was the only factor.

If you’re noticing patterns like these, it may already be time to start documenting them.

How to Document Unfair Treatment Based on Age

You don’t need to catch your employer in the act to prove age discrimination. What you do need is documentation. In both federal and state claims, the success of your case often comes down to the paper trail, and how consistently it shows unfair treatment.

Start with what you have. Then begin writing down what you experience going forward.

Some helpful ways to document include:

• Create a timeline of incidents, noting dates, names, and what was said or done
• Save performance reviews, HR emails, or internal memos that suggest shifting expectations or unfair treatment
• Keep copies of job postings or promotion announcements that show younger workers getting roles you were qualified for

Your notes don’t have to be perfect. What matters is that they’re truthful, specific, and recorded in real time. This kind of detail helps employment law attorneys and investigators see the pattern for what it is, not just isolated frustrations, but potential violations under both 29 U.S. Code § 623 (ADEA) and N.Y. Exec. Law § 296(1)(a) (NYSHRL), which expressly forbid discriminatory practices in terms of compensation, terms, conditions, or privileges of employment.

Even informal conversations can become part of your case. If someone made a comment about you being “set in your ways” or joked about your age, document it. It may support your claim.

Statements, Patterns, and Policy Gaps That Support Your Case

When you're trying to prove discrimination, it’s not about one big moment, it’s about connecting the dots. A single offhand comment might not hold up in court. But a comment, paired with a missed promotion and policy changes that suddenly disadvantage older employees? That’s a pattern.

Here’s what helps support your claim:

• Age-related remarks, even subtle ones, made by supervisors or HR
• Sudden policy shifts that disproportionately affect senior employees
• Lack of enforcement around anti-discrimination policies

Investigators from the New York State Division of Human Rights (NYSDHR) and the Equal Employment Opportunity Commission (EEOC) often look for this kind of cumulative proof. They assess whether the facts suggest a violation of 29 U.S. Code § 626(b) or N.Y. Exec. Law § 296(6), which addresses employer responsibility for preventing discrimination and allowing redress for affected employees.

Employers are also required to act once complaints are made. If they ignore or downplay the issue, that can further support your claim under state law.

Proving Discrimination Is Tougher in Maine, Where the Burden of Proof Is Higher Than in New York

Not all states handle age discrimination the same way. In Maine, workers are protected under the Maine Human Rights Act, but the process of proving age bias can be more difficult.

Here’s how it differs from New York:

• Higher burden of proof: Maine generally requires clearer, more direct evidence. New York allows plaintiffs to succeed if they show that age was one motivating factor, thanks to provisions in N.Y. Exec. Law § 300.
• Damages and scope: While Maine law provides fewer avenues for emotional and punitive damages, N.Y. Exec. Law § 297(4)(c) enables broader remedies through NYSDHR administrative proceedings.
• Case support: New York’s legal framework offers stronger investigative mechanisms, empowering employees with more paths to justice even when the employer is relatively small.

This difference in enforcement makes a real impact, especially for older workers in small businesses or less formal workplaces.

Using Comparators: Younger Workers Treated Better

One of the clearest ways to prove age discrimination is by showing how you were treated differently than a younger coworker in a similar position. This is known as using a “comparator.” It’s not about speculation, it’s about measurable differences in how employees are treated.

To use comparators effectively, gather examples where:

• A younger colleague with similar qualifications got a raise, project, or promotion you were denied
• You were disciplined or warned for something others routinely do
• Your performance was judged more harshly than theirs, despite equal or better results

Courts and investigators often look at these disparities under federal and state laws, both of which prohibit age-based favoritism that results in adverse employment decisions.

If you believe a younger coworker was favored, your attorney can often obtain additional documentation during discovery to support your claim, like evaluations, email records, or HR notes.

How Witnesses Can Strengthen Your Position

It’s one thing to tell your story. It’s another when coworkers back it up. Witnesses can make a huge difference in age discrimination claims, especially when they confirm the environment or decisions you’re describing.

Good witnesses might include:

• Coworkers who heard biased comments or saw you excluded
• Former employees who noticed similar patterns
• HR staff or managers who’ve acknowledged the treatment off the record

Testimony like this becomes especially powerful under N.Y. Exec. Law § 296(6), which allows for liability if someone aids or abets discriminatory behavior. And under 29 U.S. Code § 623(d), retaliation against a witness or participant in an investigation is strictly prohibited.

Even if your witness is hesitant to speak up, remind them: they are protected under both federal and New York law. Their statement doesn’t have to be dramatic, just honest and specific.

Horn Wright, LLP, Helps You Build a Solid Case That Holds Up

You don’t have to figure this out alone. If you’ve started documenting patterns of unfair treatment, or even if you’re just starting to notice the red flags, our team at Horn Wright, LLP, is ready to step in and help you make sense of it all.

Our employment law attorneys know how to take a messy timeline of events and turn it into a case that gets attention. We’re experienced with both federal claims under the ADEA and state complaints filed through the NYSDHR. Whether you're gathering witness statements, outlining patterns, or preparing to challenge a discriminatory policy, we’re here to support you at every stage.

Take a look at our recognition as a nationally respected employment law firm and learn why so many in New York trust Horn Wright, LLP, with cases that demand real attention.