State and federal law prohibit discrimination on the basis of a person’s age. It is illegal for an employer to take adverse employment action because an employee is 40 years old or over. Detecting age-related discrimination can prove difficult, however. Employers will often justify age-related decisions in the interest of infusing the workforce with “fresh ideas” or more vibrant employees. These terms often, though certainly not always, mask a discriminatory bias against older employees based on the stereotype that they lack these qualities.
An employer also cannot make decisions regarding pay, job assignments or benefits when the only justification is age. Because older employees often have more seniority at a company than younger employees, they are often higher on the pay scale. While a company is not prohibited from ordering layoffs to reduce payroll, it cannot do so in a manner that has a disproportionately harmful effect on older employees.
In most cases, an employee cannot point to direct evidence of age discrimination, such as an admission that a decision was taken due to the employee’s age, and thus discrimination must be shown through circumstantial evidence. There is a well-established three-part test that courts apply in evaluating a claim of discrimination under these circumstances.
First, the employee must show that: (1) he or she is 40 years or over; (2) he or she is qualified to perform the duties of the position; (3) he or she suffered an adverse employment action; and (4) he or she was replaced by someone significantly younger. Second, assuming the employee can satisfy the first part of the test, the employer must then offer a valid, non-discriminatory reason for its employment decision. Third, once the employer offers the valid, non-discriminatory reason, the employee must show that this reason is not the true reason, but only offered to conceal the true discriminatory motive (i.e. a “pretext”).
The Law Office of Joseph L. Sulman offers expert legal representation in the area of age discrimination in the workplace.