Making an Age Discrimination Claim
The Age Discrimination in Employment Act (ADEA) makes it illegal for employers to discriminate against their workers over 40 years old on the basis of age. It applies to employers with more than 20 employees. Under the law, it is illegal for an employer to discriminate based on age in hiring, wages, promotion, or termination.
In order to make out an initial (prima facie) case of age discrimination under the ADEA, 4 facts must be shown:
1. The plaintiff is over 40
2. The plaintiff was qualified for the job sought, or was performing it to the employer’s satisfaction
3. Some action was taken against the plaintiff, such as refusal to hire or promote, termination, or demotion
4. Most courts also require proof that the position was then filled with a younger person
These facts are required because they strongly imply that the employer’s conduct was motivated by the worker’s age. Therefore, a showing that the employee was over 40, and then was fired, is not enough. Absent any other information, there is no way of showing that the employee’s age was a motivating factor for the employer’s conduct, and no claim.
Once the required facts are shown, the employer has the opportunity to raise defenses. The most common defense is the “bona fide occupational qualification” defense. This simply states that the employer had a legitimate reason to take the action in question, and that age had nothing to do it. If this is shown, the employee has one more chance to win the case, by showing that the employer’s legitimate reasons are actually a pretext, to cover for his real discriminatory motive.
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Last Modified: 08-10-2009 11:44 AM PDT
