Does This Job Make Me Look Old?

How to prove an age discrimination lawsuit in Florida

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If you’ve been laid off as part of a “reorganization” that seems to have targeted people over 40, you may have a claim under the federal Age Discrimination in Employment Act (ADEA), as well as state age discrimination laws. But be forewarned: Discrimination based on age can be a sticky wicket.
 
Plenty of terminations occur under circumstances that seem unfair, unethical or uncaring. However, because almost all employees hold their jobs subject to at-will employment, an employer can make hiring, firing and other employment decisions for almost any reason they want, just not for an illegal one. Unlawful bases for an employment action are either retaliation (e.g., against an employee who blew the whistle on a questionable practice) or discrimination.
 
The ADEA provides for federal protection against discriminatory action in employment (whether in hiring, firing or during the course of employment) for individuals age 40 and older. It applies to all employers with 20 or more employees, and is enforced by the Equal Employment Opportunity Commission (EEOC). The Florida Civil Rights Act (FCRA) also prohibits employment discrimination based on age, as well as a number of other listed categories. The statute does not specify an age to which it applies, but case law says that the Florida courts will follow ADEA analysis. Florida’s law applies to employers with 15 or more employees, and is administered through the Florida Department of Human Rights (FDHR).
 
Under federal law, discrimination based on age can be particularly difficult to prove. While complaints of age discrimination have been on the rise since The Great Recession, during the same period it has become more difficult to prevail in court. In 2009, the Supreme Court determined that ADEA requires showing that the sole motivating reason for an adverse employment decision was discriminatory. This can be especially difficult for workers because cutting costs is considered an acceptable basis for letting someone go. Older workers, who typically have worked longer and earn higher salaries, tend to cost more. Where someone has been let go or demoted based on both age and cost-cutting, age would not have been the sole reason, and therefore a judge would not find a violation of the ADEA. The plaintiff can only prevail by showing that the legitimate reason offered by the employer is a pretext for a decision based solely on age.
 
Even though such litigated outcomes do not appear to favor plaintiffs, the administrative process may nonetheless afford some relief. Few cases actually make it to court, as the first step in a claim is to exhaust administrative remedies. You can file your initial complaint with either the EEOC or the FDHR. You don’t need a lawyer to get this process started (though it is helpful to have knowledgeable counsel), and there are strict time limits for filing—300 days from the date of adverse action for EEOC and 365 days for FDHR.
 
Once this process has begun, the agency will notify your former employer and investigate the claim. During this time, it can be opportune to pursue settlement negotiations, as most employers would prefer to avoid litigation. Additionally, you’re likely to achieve a better result financially, and you’ll be in a better position to seek another job. If the matter is not resolved, you must receive a “Right to Sue” letter from the agency before you can proceed to file a claim in either federal or state court.
 
To get an assessment of your specific circumstances, and to answer your questions, speak with an employment lawyer in your area. 

Florida

Some practical tips if you suspect you’ve been laid off because of your age:
  • Before you sign a severance agreement, talk to an employment attorney. In most cases, you have 21 days from the date of termination to sign an offered severance agreement, and seven days to revoke an agreement after signing. There are many important issues to be negotiated in this agreement, and by signing too quickly you may be giving up your right to sue for discrimination.
  • Document everything—keep a written record of all interactions, statements, conditions, etc. that lead you to believe that you’re being discriminated against. Include dates and names.
  • Be prudent in discussing your claim while seeking your next employment opportunity, as prospective employers may be uneasy about someone with a history of suing.

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