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How can I prove age discrimination?

By Johns, Flaherty & Collins, SC on Monday, April 9th 2018

age discrimination

How can I prove age discrimination if I am fired, demoted, or passed over for promotions?

Aging in the workplace can be a little scary if you’re not the one in charge, but federal law and state law do offer some protections. The federal Age Discrimination in Employment Act of 1967 makes it unlawful for an employer to take action against an employee “because of such individual’s age.” In the past decade, however, case law has added some nuance to the legislation. A 2009 Supreme Court case placed the burden of proof on the plaintiff to show that age is the primary or only reason an employee has been fired or mistreated.  Under state law, the key question is whether age was a determining factor in the employer’s action.

Ellen Frantz explains that a few factors must be in place in order for an employee to build a case:

  • You must be 40 or older
  • You must show that you have been adversely affected by an employment action
  • You must be able to prove that your employer took action because of your age

“You lay out the elements, and the ball bounces to the employer to show it had a legitimate nondiscriminatory reason for the decision. Then the ball bounces back to the employee to show the reason was a pretext or not true,” says Frantz.

The most powerful evidence of discrimination lies in the words of supervisors and human resources departments. Keep careful documentation of situations in which your age is mentioned at work. If a supervisor or colleague asks you when you plan to retire or voice concerns about you being able to perform aspects of your job because of your age, make a note of it. If you are teased or called derogatory names related to your age, that is age-based harassment and can be presented as evidence.

Other evidence includes discipline and exclusion. Are you suddenly placed on probation or documented for performance issues that you see committed by other colleagues? Are you left out of training seminars or social events when younger employees are invited? Make note of these instances if you intend to pursue an age discrimination claim.

Frantz notes that a complaint against an employer can be taxing: “If you want to travel this road, be aware that it takes a fair amount of time to resolve, and in the meantime, you have to live with it on an emotional level.”

employment lawyer in la crosse wiInformation by Ellen Frantz, employment lawyer at Johns, Flaherty & Collins, SC. For more on age discrimination and other employment law issues, contact her at 608-784-5678.

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