How Do I Prove Age Discrimination in a Lawsuit?

If you were laid off or given a demotion as part of a “reorganization” that seems to have targeted older employees, you may have an age discrimination claim under federal and state age discrimination laws.

For legal advice on whether you have an age discrimination claim, contact a discrimination law attorney.

Signs of Age Discrimination

How can you tell if it’s an age discrimination lawsuit? Employment law attorneys agree: Age discrimination cases are tough to argue.

“It happens a lot in overall restructuring,” says Allyson L. Belovin, an employment and labor lawyer at Levy Ratner in New York City. “When mostly older people are let go, and younger employees are promoted, it sends up red flags and identifies victims of age discrimination.”

If you and at least one other employee have lost your jobs in a layoff, federal law allows you to get a list from your employer of those let go, including ages and positions. But even if you are the only worker terminated, you can file a complaint.

Discriminatory Phrases in the Workplace

Age, says Debra L. Raskin, is one of the last bastions of acceptable discrimination.

“On some perverse level, it’s still considered praise to say someone acts young or thinks young,” says Raskin, an employment attorney with Vladeck Waldman Elias & Engelhard who handles age discrimination cases for plaintiffs. “There are a million examples of age discrimination that reflect the stereotypes of what people of a certain age can and cannot do.”

She rattles some off:

• Don’t be old-fashioned
• We need young blood
• We are removing deadwood

“Have I heard all these discriminatory phrases? You bet.”

Federal and State Laws Prohibit Age Discrimination in Employment

The federal Age Discrimination in Employment Act (ADEA) outlaws discrimination against workers and job applicants 40 years of age or older. It applies to most employers with 20 or more employees. The U.S. Equal Employment Opportunity Commission (EEOC) enforces age discrimination protections.

States and many cities also prohibit age discrimination. Many state legal protections provide even greater protection for workers. State laws often cover smaller companies and allow for attorneys’ fees and monetary damages to punish an employer for egregious conduct.

For example, the Florida Civil Rights Act (FCRA) does not specify an employee’s age to which it applies, though case law says that Florida courts will follow ADEA analysis. But Florida’s law applies to employers with 15 or more employees (as opposed to the ADEA’s 20-employee threshold). Claims go through the Florida Department of Human Rights (FDHR).

Difficulties in Proving Age Discrimination Claims

Age discrimination complaints are often an uphill battle because employees must prove that age bias was the reason. Businesses often contend that they were trying to cut costs or use some other employment practice as a pretext.

“Most [age-based] discriminatory claims are not proven based on direct evidence,” says lawyer Diane P. Perez in Coral Gables, Florida. “Very rarely do you have an employee who approaches you and says, ‘My boss told me I’m terminated on the basis of age.'”

In non-termination cases, an older employee gets demoted, shut out of team projects, or loses out on bonuses offered to a younger person. Evidence of age discrimination can be scarce, making it difficult to prove.

Age Bias Can in the Workplace Can Be Subtle

“Many employers are sophisticated enough not to be blatant about different types of discrimination,” Belovin says.

“I meet with a lot of older workers who are having trouble, who see storm clouds on the horizon, and easily 50 percent of those are in their 50s and 60s,” says Laurie Berke-Weiss of Berke-Weiss Law in New York.

But as with other areas of discrimination, such as race and gender, it’s difficult to prove. “It’s not like somebody said to them, ‘You’re too old.’ But it implicates age,” Berke-Weiss says. “The test is to prove that age is the ‘but-for’ cause, and that is very hard.”

Unfair Treatment Is Not Necessarily Discrimination

Plenty of terminations occur under circumstances that seem unfair, unethical, or uncaring. However, almost all employees hold their jobs subject to at-will employment. This means an employer can make hiring, firing, or other employment decisions for almost any reason they want — just not for an illegal one.

Generally, unlawful bases for an employment action are retaliation or workplace discrimination. Bill Julien, in Boca Raton and Boynton Beach, adds that age-discrimination cases have a higher standard of proof. He recommends speaking with an employment lawyer early on to discuss age discrimination laws. “If you complain without legal guidance, you may get fired and find out later that you had no reasonable, legal belief you were wrongfully terminated.”

“Central to any employment action is whether or not the person was replaced by a substantially younger worker,” says Dana Gallup, at Gallup Auerbach in Hollywood, Florida. “If the real motivating factor for letting an older employee go who’s been with the company 20 years is to save money and hire somebody else who would work for less, it’s a gray area as to whether age is the motivating factor.”

What To Do if You Suspect Age Discrimination in an Employment Decision

Before signing a severance agreement or even making a complaint, it’s a good idea to talk to an age discrimination attorney.

One of the biggest mistakes employees make is failing to notify their employers about a concern, says Marijana Matura, a partner at Kessler Matura on Long Island. Following the steps outlined in your company’s employee handbook is also important.

“We always recommend putting a complaint or any form of discrimination in writing,” Matura says. “It puts the employer on notice there’s a violation. They then have a duty to act, to investigate to see if there’s any credibility to the claim. Put the ball in their court. Their failure to act on that is liable.”

“A lot of times, lawyers can resolve the employment decision and get the employee more than they were initially offered in severance. If we’re contacted before the person is actually let go, we can give advice as to how to manage the situation — and work with them, if they stay,” Gallup says.

Gather Evidence of Age Discrimination and Make Complaints in Writing

You can initiate with a verbal complaint, but one in writing is preferable, as it gives a timestamp and a more concrete form of evidence.

The stronger the evidence — be it documents, recordings, and/or testimony from colleagues — the stronger your case. Keep a written record of interactions, statements, and conditions that indicate possible discrimination.

The first step is to exhaust administrative remedies. You can file your initial complaint with the EEOC or local state agency. You don’t need an employment lawyer to start this process. However, it’s very helpful to have knowledgeable counsel, and there are strict time limits for filing. However, some states allow you to sue your employer without waiting for an EEOC decision.

Find Experienced Legal Help

Matura notes that businesses are often insured against age discrimination cases. “If you have great smoking-gun evidence, typically you can resolve it pretty quickly,” she says.

If you have questions about workplace discrimination, visit the Super Lawyers directory to find an age discrimination attorney.