Date: June 4, 2026
Age discrimination can be hard to spot and even harder to prove. MarketWatch spoke with TELG principal R. Scott Oswald on the warning signs that may indicate age discrimination and what employees can do to fight against it, such as documenting performance reviews.
Quoteworthy:
"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. That’s pretty damaging in front of a jury."
R. Scott Oswald
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[EXCERPT]
Think you are facing age discrimination? Don’t get bitter, do this.
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.”
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.
[…]
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”).
[…]
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.
[…]
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.”
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