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Age discrimination is starting to hit workers in their 40s

Woman financial advisor
John Wildgoose | Getty Images

You know all those workplace health programs where your employer gives you some kind of incentive to take a "wellness test," or join a gym with a company discount? We've been told for years that these programs are meant to encourage healthier lifestyles in and out of work and also help employers cut down on employee health costs. The Obama Administration even got into the act and endorsed the idea by overseeing the rules of such programs. All good, right?

Actually, it's not so right for everyone. It turns out a lot of American workers are uneasy and suspicious of these programs that force them to reveal what used to be private medical information. They're also crying foul at being left out of sometimes very lucrative financial incentives simply for refusing to hand over that personal information.

AARP recently took those concerns to court, suing the Obama Administration and the Equal Opportunity Employment Commission for failing to uphold anti-discrimination laws meant to protect older workers and employees with various ailments or disabilities.

But this case may be just the tip of the iceberg. AARP and a lot of trial lawyers are going to be busy with a bigger fight in the coming years as both blatant and indirect ageism starts to rear its ugly head in the workplace. And that includes the fight against using all kinds of seemingly unrelated or indirect information to discriminate against older workers.

The "older" in this case does not mean elderly either. We're talking 40-year-olds and maybe even people in their late thirties. Ask the litigants in a growing lawsuit avalanche against Silicon Valley companies. According to the research firm PayScale, the median age of an American worker is 42, but at Microsoft it's 33, Apple 31, Google 30, and Facebook just 29.

A recent Bloomberg News report documented the frantic methods many tech job applicants use to look younger, including extensive use of plastic surgery. The report also noted that Silicon Valley's 150 largest tech companies were sued 226 times for age bias from 2008 through 2015.

"As much as Madison Avenue may want to keep everyone's focus on what's "young and hip," our economy and society can't survive if people as "old" as 40 start having trouble finding work."

It was just a few decades ago when demographers and other sociology experts were telling us that America in the 21st century was going to become more dominated by senior citizens as people would live longer and older people became a bigger chunk of the population. They got the "living longer" part right, but it turns out millennials are the single biggest segment of the U.S. population right now.

They're also becoming the bulk of the workforce, and people simply feel more comfortable working with people just like them. That's making all too many workplaces and businesses - obsessed with selling and marketing to younger Americans - hire younger Americans to do that selling and marketing. With all the focus on curbing racism and sexism in Silicon Valley and elsewhere, it sure feels like the most blatant discrimination could be against workers over 40. That's where the lawyers are starting to get involved.

But again, it's important to note why this workplace health case is different. This time, the plaintiffs are claiming the U.S. government is encouraging the potentially ageist practices throughout corporate America. Because Congress and the Supreme Court have consistently made ageism much harder to prove legally, any company using health incentive programs and fitness statistics to avoid keeping or hiring older and/or less healthy workers can expect a great degree of cover.

And perhaps worst of all, the federal government blatantly advertises and encourages this kind of behavior with its Pathways Recent Graduates program which is the safe way to focus only on job applicants under age 35. Private employers mimic this with several similar programs of their own.

Perhaps that's why the sharpest downsizing bite from the Great Recession was felt mostly by older workers. The National Employment Law Project issued a study showing older workers experienced the greatest percentage increase in its unemployment population from 2007 to 2011. That number more than doubled from 1.3 million in 2007 to 3.2 million in 2011.

And these are unemployed people who typically still have mortgages and property taxes to pay. It's bad enough when younger people lose their jobs, but when older people become unemployed, society loses out on productivity and spending it had been relying on. The next time you meet a disenchanted older American, think about that.

As much as Madison Avenue may want to keep everyone's focus on what's "young and hip," our economy and society can't survive if people as "old" as 40 start having trouble finding work. This goes beyond the issues tied to just one political party, administration, or advocacy group. Win or lose this case, AARP may help the country open its eyes to what's already an economically serious problem and could get much worse.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

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