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Employment discrimination: is age discrimination at work?

By Johns, Flaherty & Collins on Wednesday, November 7th 2012

In the last few years, older adults have found themselves losing jobs and having great difficulty finding new ones.

Is it discrimination?  It could be in some cases. But it is hard to prove.

People who are 40 and older are protected by statute from age discrimination in the workforce. You may bring a lawsuit under federal or state discrimination laws if you believe you were not hired or were terminated because of your age.

Knowing the law, most supervisors and prospective employers are not so naïve that they would say something blatant like, “You know, Bob, you are too old to do this job.” Discrimination, generally, is subtler.

Proof may be found in the employee pool—if older workers seem to have been systematically eliminated from the company. But the employer might have other nondiscriminatory grounds for dismissal.

Also, if older employees accept buyouts, meaning they can “elect to stay or go,” this does not give rise to a discrimination claim. In most cases, agreeing to the buyout requires a waiver of any discrimination claim.

To prove you were not hired because of your age, you would have to research the ages of those considered and interviewed, along with their qualifications.

Employers, meanwhile, can protect themselves by documenting reasons for dismissals.  If you are not happy with the performance of an older employee—or any employee, for that matter—carefully and thoughtfully keep good records. If you handle it right, a suit brought against you for age discrimination will not be successful.

For older workers who are laid off, keep your skills up to date and network with prospective employers and those who might help you get work. While you can network via the Internet, there is something to be said for face-to-face contacts, too.

Take classes if necessary. Volunteer in your field while you are waiting for a new position. The key is to stay current and be ready to jump right in again.

For more information on employment discrimination in Wisconsin, contact Ellen Frantz at 608-784-5678.

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