Wednesday, November 17, 2010

I am an Employee Being Subjected to Age Discrimination in Pennsylvania - Do I Have a Case?

I Believe I am the Victim of Age Discrimination - How Can I Tell if I Have a Good Case?

Baby Boomers (born 1945 to 1964) now range from age 54 to age 73, 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 win an age discrimination case, an employee must prove that he/she is over 40 and was fired because of his/her age. Sounds simple, right?  Well, if you will excuse the pun, that is not the case.

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
In its 2008 decision in Gross v. FBI, the United States Supreme Court held (regrettably) decided that an employee can win an age discrimination case only if he/she can prove that it was his/her age, to the near exclusion of all other factors, that was "the motivating factor" for the termination.

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
Bearing in mind that may people over 40 are fired everyday in America (and often by people who are themselves over 40), allow me to provide an example of the "ideal" age discrimination case.

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 ClaimsClick Here.

Helping Pennsylvania's Work Force
Since 1991
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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Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.


Ven Disel said...

Under both the Federal Age Discrimination in Employment Act of 1967, or ADEA, and the California Fair Employment and Housing Act, or FEHA, workplace discrimination based on a worker’s age is very much illegal. Both of these anti-discrimination laws classify individuals 40 years of age and older as a protected class, meaning that it’s illegal for a person to be discriminated against in the workplace based on their being 40-years-old or older. While the federal and state anti-discrimination laws don’t set an age cap on this protection, some separate laws exist with age caps. In order to fight any legal tussle that has arise over age discrimination in employment, then hiring a lawyer with ample knowledge of the subject can be your best solution.

Anonymous said...

I have been a waitress at my job for over 3 three years, I havent been fired from my job, but my employer has hired at least 15 new employees, under the age of 30 who have all but replaced me on the schedule. There is another women older than me that went through the same thing and she reported the operations manager to HR and is on the schedule every week. I am a hard worker and can absolutely do anything these younger girls can do. I know I have better manners. Is there anything I can do. I am looking for full time employment elsewhere but I dont have the option of quitting the only job I have, even if I am making less than 200 a month

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