How Can I Win an Age Discrimination Lawsuit

While there are no guarantees in litigation, by being prepared for trial and knowing the legal standards, you may be able to increase your odds for success. Read on for important information regarding these types of claims and then consult a lawyer in the field.

Legal Standard

If the claim is based on federal law, the Age Discrimination in Employment Act applies. This law prohibits employment discrimination on the basis of age to employees age 40 or older. It applies to employers with 20 or more employees. The federal job applies to employees as well as applicants. It prohibits discrimination in decisions regarding hiring, training, compensation, benefits, promotion, layoffs, firing and other terms, conditions and privileges of employment.

The federal law prohibits discriminating against employees age 40 or older in advertisements for job openings, as well as in the interview process. Advertisements may only include limitations regarding age if age is a bona fide occupational qualification that is based on business necessity.

State laws vary in scope. Some state laws lower the age to 35. Others require fewer employees in order to apply.

Disparate Treatment

Disparate treatment claims allege that an employer singled out one or more employees because of their age. The person’s age must be the motivating factor for adverse employment action, although there may be additional reasons for the action. For example, the employee may allege that he was not promoted because he was perceived as not having the necessary energy for the new position, or an employee may claim that she was fired once she turned 65. These claims are based on the intentional actions and motives of the employer.

Disparate Treatment Evidence

In less common cases, plaintiffs may use direct evidence to help prove their claim. For example, a supervisor may have made negative remarks to the employee about his age, such as teasing or calling him or her names. If a plaintiff establishes unlawful discrimination, the employer has the burden of showing that it would have made the same decision regardless of the employee’s age.

Other signs of direct evidence include a history of harassment or discipline. For example, the employee may have been a target of ridicule due to his or her age. The employee may have started receiving negative discipline reports that were not consistent with previous performance evaluations.

However, many cases rely on circumstantial evidence. For example, an older employee may be fired and a younger employee replaces him. The older employee could have frequently been excluded from activities that younger employees were invited to. There may also be a history of promoting or hiring younger employees in a disproportionate degree to older employees.

Another source of evidence is a copy of an advertisement by an employer that seems to target younger employees for jobs.

Disparate Impact

Disparate income claims are not based on the bad motive of an employer to discriminate because of age. Instead, they are based on some type of policy or employment practice that results in a disparate effect on older employees. These employees are disproportionately affected in a negative manner. For example, more employees may have lost their jobs if they were over 40.

Employers can avoid liability under this legal theory if they can prove that their decision was based on a reasonable factor other than age. This means that a non-age factor that is objectively reasonable was used to achieve a legitimate business purpose and that the employer applied this factor in a way that reasonably achieved the purpose. For example, the employer may claim that the layoffs were due to wanting to lay off people with higher salaries, regardless of their age.

Disparate Impact Evidence

Disparate impact evidence usually provides statistical information about how a particular policy has adversely affected older employees. For example, a policy to lay off higher paid employees may lead to a chart that depicts the number of older employees laid off in comparison to younger employees.

Legal Assistance

Age discrimination claims are complex. Contact an employment law attorney who is familiar with discrimination claims for assistance.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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