Baby Boomers now range from age 51 to age 69, and there are a lot of us out there.
Perhaps not coincidentally, if EEOC;s statistics are taken at face value, age discrimination is a more common occurrence in corporate America now than ever before.
For example, EEOC Charge of Discrimination statistics disclose that, in 1997, there were 15,785 Age Discrimination Charges filed with EEOC.
In 2010, that number was 23,264, which equated to 23% of all Charges filed with EEOC.
Despite the the evidence suggesting age discrimination is in vogue more now then ever before, the fact is that proving age discrimination has occurred is not easy.
|Age of Reckoning for Baby Boomers?|
To Prove Illegal Age Discrimination, An Employee Must Prove That His/Her Age Was THE Motivating Factor for the Termination
In order to understand why proving an age discrimination case is hard, let's start by looking at the term "because of age."
|Gross an Unfortunate Decision|
Employers know this, and usually provide a laundry list of reasons for an older worker's termination, which will at trial be offered as evidence of a non-discriminatory basis for the firing.
|Winning an Age Case No Easy Chore|
If You Are Over 40, Were Fired Without Good Cause and Were Replaced by a Person Who is More Than 5 Years Younger Than You, You May Have a Case for Age Discrimination
The employee has worked for the company for more than 10 years. Within a year of termination, he/she is assigned a new supervisor who is substantially younger than they are; OR, the company comes under new management or ownership.
The employee is (allegedly) fired either because of a layoff or because of a sudden "drop" in performance that is unsubstantiated. Sometimes the employee is terminated when he/she "refuses" to retire. Then, the employee is replaced by someone who is more than 10 years younger.
Although this is what I refer to as a "clean case," there are many other variables that may come into play. If you are part of a mass "lay off," and many of those laid off are older than 40, and are subsequently replaced by people under 40, your case has appeal. If, on the other hand, you are fired because of customer complaints or ongoing issues with management, your case is less than ideal.
Early "voluntary retirement" cases also have potential great appeal. If you are offered early retirement in lieu of immediate termination, you will not only be eligible for your retirement benefits, but may also have a right to Pennsylvania Unemployment Compensation. Click Here to read about how that scenario plays out.
Employment Discrimination Results From a Feeling or Belief That is Covered Up by Bogus Explanations for Discipline or Termination
I believe the most important thing to remember, and the most difficult thing for employees to understand, is what discrimination is and how it is proved.
Discrimination is an intentional act.
It is proved be showing that the reason for termination was bogus, AND THAT THE EMPLOYER KNEW IT WAS BOGUS.
In essence, you must prove that the employer made up the reason for termination.
It is not enough to prove that the employer's reason for termination was wrong. That is often easy to do, but it is not enough.
Rather, you must prove that the employer first made the decision to fire you because of your age, and then later came up with a reason to fire you that is in essence designed to hide its true motivation.
These principles apply not only to age discrimination claims, but also to all discrimination and retaliation) claims.
NOTE: Discrimination based upon religion or military service may be demonstrated where: 1) you are punished for observing a religious holiday; 2) you are punished because of a military obligation.
Questions about Retaliation, Hostile Work Environment or Wrongful Discharge Claims? Click Here.
|Helping Pennsylvania's Work Force |
Philadelphia Area Employment Attorney Representing Employees
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.
John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.
Pennsylvania Employment Attorney Provides Free Telephone Consultations
If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call. I am always glad to spend some time with people via a free telephone consultation.
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· wrongful termination
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