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How to Prove Age Discrimination in the Workplace

  • By: Micah Longo, Esq.
  • Published: July 25, 2016
How to Prove Age Discrimination in the Workplace

If you have been fired, demoted, or denied a job in Florida because of your age you may have an age discrimination in the workplace lawsuit. In age discrimination cases, a worker makes a claim under the federal law that prohibits employers from discriminating against workers in the terms and conditions of employment because of the worker’s age. The federal law is the Age Discrimination in Employment Act (“ADEA”) and it applies to workers who are at least 40 years old.

Elements of Age Discrimination

In an ADEA case involving discharge, demotion, or failure to hire, a plaintiff may establish a case by showing:

  • that plaintiff was a member of a protected group of persons between the ages of 40 and 70;
  • that plaintiff was subjected to an adverse employment action;
  • that substantially younger persons filled the position that plaintiff sought or from which plaintiff was discharged;
  • that plaintiff was qualified to do the job for which plaintiff was rejected.

The ADEA does not authorize mixed-motive age discrimination claims because the plain meaning of the ADEA’s requirement that employer took adverse employment action “because of” age is that age was the sole reason that employer decided to act; therefore, to establish an age discrimination claim, plaintiff must prove that age was “but-for” cause of employer’s adverse decision.

If a plaintiff establishes a case of discrimination under the ADEA, the employer MUST articulate a legitimate, non-discriminatory reason for the challenged employment action. The burden is one of production and the court will not second-guess the business decision of the employer.

Pretext In Age Discrimination Cases

If an employer offers one or more legitimate, non-discriminatory reasons for an adverse employment action in an ADEA case, the presumption of discrimination is eliminated and the worker then has the opportunity to come forward with evidence, including the previously produced evidence establishing the age discrimination case, sufficient to permit a reasonable fact-finder to conclude that the reasons given by the employer were not the “real” reasons for the adverse employment action. This is referred to as “pretext” amongst age discrimination lawyers in Florida.

A plaintiff may show pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of belief. The plaintiff must show such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reason for its action and that a reasonable fact-finder could find them unworthy of belief. A reason cannot be pretext for age discrimination unless it is shown that the reason was false, and age was the real reason.

Examples of Age Discrimination

Sometimes decision-makers make statements which could be considered direct evidence of age discrimination. Direct evidence of age is discrimination is evidence which establishes discriminatory intent without inference or presumption. Only the most blatant remarks, whose intent could mean nothing other than to discrimination on the basis of age could constitute direct evidence of age discrimination. Comments made by non-decision makers or co-workers or statements that are not related to the decision making process is not direct evidence of age discrimination.

For example, a supervisor’s references to an employee as an “old man” was not considered direct evidence evidence because the statement was unrelated to the decision to terminate the man. Also, a statement by a manager that he “was going to get rid of all you old people who have been here a long time and don’t want to do your job” was not considered direct evidence because it is subject to more than one interpretation and directed at workers with performance issues. Additionally, a decision-maker’s comment that “what the company needs is aggressive young men like [the replacement] to be promoted” did not constitute direct evidence of age discrimination.

When direct evidence of age discrimination does not exist a plaintiff can still prove age discrimination by establishing the prima facie element above. For example, a manager who is 58 years old is replaced by a 32 year old, this establishes the basic elements of an age discrimination case. The burden then shifts to the employer to proffer a legitimate nondiscriminatory reasons for why the manager was replaced by someone substantially younger. So, suppose the manager was allegedly fired for unsatisfactory performance, the manager would then have the burden of showing that this reason is pretext (not true) for unlawful age discrimination. So, if you assume that the manager has never had a poor performance review and the employer did not follow it’s progressive disciplinary policy, coupled with the fact that the manager is substantially more qualified than the younger replacement, the manager likely has a solid case of age discrimination.

Age Discrimination Settlements

When considering the issue of settlements and damages a plaintiff is entitled to the full, just, and reasonable compensation for all damages as a result of the age discrimination, no more and no less. Compensation damages are not permitted as a punishment and must not be imposed or increased to penalize the employer. Also, compensation damages must not be based on speculation or guesswork.

The first element of damages a successful age discrimination plaintiff is entitled to is net lost wages and benefits from the date of the adverse employment action to the date of the jury verdict. Also, if the employer acted willfully, then the plaintiff should be awarded liquidated damages. Front pay is not recoverable in a liquidated damage award because while liquidated damages are intended to be punitive in nature, the express terms of the ADEA limit the calculation of liquidated damages to double the amount of pecuniary wages.

Neither punitive damages nor compensatory damages for pain and suffering are recoverable under the ADEA. Attorneys fees and costs are recoverable to a prevailing plaintiff of age discrimination.

Charge of Discrimination

If you have been discriminated at work because of your age (40 or older) you must file a Charge of Discrimination before filing a lawsuit. This is called “exhausting administrative remedies” and is a condition to filing an age discrimination lawsuit in court. If an instigation by the Equal Employment Opportunity Commission (“EEOC”) finds no violation a plaintiff is given a Notice of Right To Sue. This gives a plaintiff permission to file an ADEA claim in federal court. If the EEOC does not complete their investigation within 180 days a plaintiff may request a Right To Sue notification from the EEOC.

Statute of Limitation For Age Discrimination Case

Under the ADEA a plaintiff has a limited time to file a charge of discrimination with the EEOC. In Florida, you have 300 calendar days from the day the age discrimination took place to file a charge with the EEOC and/or co-file with the Florida Commission on Human Relations (“FCHR”). This deadline is extended from 180 days to 300 days because Florida has a state law called the Florida Civil Rights Act prohibiting age discrimination in employment and a state agency called the Florida Commission on Human Relations enforcing the law.

Time limits for filing a charge of discrimination (300 days) is not tolled while a plaintiff attempts to resolve their age discrimination claim through other methods like internal grievance procedure, union grievance, and/or mediation/arbitration before filing a charge with the EEOC.

Micah Longo, Esq.

Attorney Micah Longo is the founding member
and managing attorney of The Longo Firm. A
Pennsylvania native, Micah Longo...Read More