Age Discrimination and Wrongful Termination
To initially make a claim for age discrimination, the employee-victim has to show that (1) at the time of termination or another significant adverse employment action (i.e. demotion, transfer to a much less desirable position, etc.) he was over 40; (2) an adverse action was taken against that employee; (3) at the time of the adverse action (i.e. termination) the employee was satisfactorily performing his job, and (4) that employee was replaced in his position by a significantly younger person, except where there is a reduction in force. (Hersant v California Dept. of Social Services (1997)). Some people, including employers, misunderstand the above and believe that as long as they replace an older worker by someone older than 40, no age discrimination claim can be made. This is inc
I strongly believe that age discrimination claims against employers will be on the rise in the future. This trend will occur for various reasons, including the pressure to cut costs by replacing senior workers with younger and cheaper force, a (false) perception that younger workers are stronger, healthier and more reliable, and the need to have a "prettier" workforce, especially in those positions where looks really matter (i.e. sales). The other reason that employers will continue to be tempted to violate the law by firing older workers is because age discrimination is relatively hard to prove.
The good news for older employees who are being discriminated because of their age is that making a case is possible even when employers may think they can get away with it. We have been seeing the same termination patterns over and over which have a strong indication of age discrimination, including:
It's important that the facts of your termination are carefully analyzed in order to determine whether there is sufficient evidence to prove that age discrimination was the true reason for your termination, and that you weren't terminate for one or more other, non unlawful, reasons - however unfair or incorrect they may be. Remember - in most cases it's not illegal to treat or terminate an employee for unfair or unjustified or even false reasons. It's only illegal to discriminate or retaliate based on protected class or activity.
An age discrimination case can lead to a significant liability and recovery in and out of court because of the potential emotional appeal of those kinds of cases, especially where that older worker worked for the same employer for 20 or more years, and where the employer is a large company which is expected to know better than cover up discrimination with untruthful or exaggerated stories.
If you haven't been terminated yet, but you have a good idea that your employer is trying to replace older workers with younger and your turn of being fired and replaced is coming soon, be sure to read our article on how to enhance your potential age discrimination claim before you are fired.
I strongly believe that age discrimination claims against employers will be on the rise in the future. This trend will occur for various reasons, including the pressure to cut costs by replacing senior workers with younger and cheaper force, a (false) perception that younger workers are stronger, healthier and more reliable, and the need to have a "prettier" workforce, especially in those positions where looks really matter (i.e. sales). The other reason that employers will continue to be tempted to violate the law by firing older workers is because age discrimination is relatively hard to prove.
The good news for older employees who are being discriminated because of their age is that making a case is possible even when employers may think they can get away with it. We have been seeing the same termination patterns over and over which have a strong indication of age discrimination, including:
- "Laying off" an older employee after he worked for the company for fifteen or more years, and posting a vacancy for the same position shortly after. Sometimes, employer slightly change the title of the position to make it look like it's not the same job, but the job duties remain essentially the same, and that's what counts.
- Having an older employee train a younger associate, and then "reducing" workforce by keeping that young trainee after he learned what he needed to know and letting the older worker go.
- Terminating an older employee for a very petty, insignificant violation which has never been a problem before, and where other employees are not terminated or even disciplined for the same violations.
- A patter of denying a promotion to a clearly qualified or the most qualified workers and instead repeatedly promoting younger candidates.
- Statements by a supervisor to an older worker shortly before terminating him that he is not as fast as he used to be, that they company needs "fresh blood" or fresh perspective, encouraging the older worker to retire or resign and any other statements suggesting discriminatory animus toward the employee because of his age. The Supreme Court specifically considered such references as "not a cultural fit", "slow", "fuzzy" "sluggish", "lethargic" toward an older employee, as well as calling his ideas "obsolete" and "too old to matter" to be one type of evidence of age discrimination. (Reid v Google)
It's important that the facts of your termination are carefully analyzed in order to determine whether there is sufficient evidence to prove that age discrimination was the true reason for your termination, and that you weren't terminate for one or more other, non unlawful, reasons - however unfair or incorrect they may be. Remember - in most cases it's not illegal to treat or terminate an employee for unfair or unjustified or even false reasons. It's only illegal to discriminate or retaliate based on protected class or activity.
An age discrimination case can lead to a significant liability and recovery in and out of court because of the potential emotional appeal of those kinds of cases, especially where that older worker worked for the same employer for 20 or more years, and where the employer is a large company which is expected to know better than cover up discrimination with untruthful or exaggerated stories.
If you haven't been terminated yet, but you have a good idea that your employer is trying to replace older workers with younger and your turn of being fired and replaced is coming soon, be sure to read our article on how to enhance your potential age discrimination claim before you are fired.