If you’re over 40 and you’ve recently suffered an adverse employment action you may have an age discrimination case. The Age Discrimination in Employment Act (“ADEA”) is a federal law that makes it unlawful for an employer to discriminate on the basis of age.
Things You Must Prove
There are 2 things you must prove to have an age discrimination case. First, you must be at least 40 years old. Second, you must prove your age was the motiving factor for the employers decision.
You can prove age discrimination by direct evidence or by circumstantial evidence. Only the most blatant remarks, will constitute direct evidence of age discrimination. Circumstantial evidence is more common.
In age discrimination cases based on circumstantial evidence, you must prove the following:
you’re at least 40 years old;
you were subject to adverse employment action;
a substantially younger person filled the position you sought or from which you were fired; and
you were qualified to do the job for which you were rejected
You can meet the “substantially younger” replacement requirement where your replacement is five (5) years younger. For example if you’re 42 at the time of your termination and you’re replaced by someone 37, you have met the “substantially younger” replacement rule.
In age discrimination cases, court will focus on your skills and background to detrmine if you were qualified for a particular position. Also, if you’ve been employed in your position for a significant period of time, you’ll have met the “qualified” rule. In other words, if you’ve been a manager for the last 6 years, you’re qualified for the position.
Motivating Factor – Age
The biggest hurdle in any age case is proving that age was the the motivating factor. You’ll have to show that had you been younger you wouldn’t have been fired or you would have got the promotion, with everything else being the same.
While your employer may not discriminated because of age, they may fire you for any other reason, good, bad, or ugly. A jury in an age discrimination case will be instructed not to second guess the decision of your employer. In other words, not substitute their own judgment for that of the employer’s judgment, even if they don’t agree with it. This is called the business decision rule.
Age discrimination lawyers always consider the circumstances of the employer’s decision. For example, if the reason for your termination is unbelievable, it could be a cover-up. This is the case in about 9 out of 10 age discrimination cases.
If you prove age was a motivating factor then you’re entitled to money damages. Under the ADEA, you are entitled to back pay and liquidated damages. You are not entitled to pain and suffering damages or front pay. Liquidated damages is double your back pay. So, if you’ve lost $50,000 in back pay, you could be awarded another $50,000 in liquidated damages. You’re also entitled to attorneys fees and costs if successful. Because of the way the damages are structured it is common to see cases settle.
For more information please browse some of the other articles and videos on age discrimination.
Micah Longo, Managing Attorney of The Longo Firm (Davie, FL)