How To Win An Age-Discrimination Suit

Middle aged man sitting and looking into the distanceBy Penelope Lemov

When you lose your job at 45 or so, it's tempting to want to sue for age discrimination, especially if you received excellent annual reviews and were replaced by someone 20 years younger.

While you may think you have an airtight case, the odds against winning could be low. What's more, you could wind up paying a high price -- not just monetarily -- by going to court.

That said, you'll hardly be alone in seeking legal redress.

Age Discrimination Complaints Have Soared
Age-related charges make up a growing number of complaints filed at the Equal Employment Opportunity Commission, the federal agency that handles such matters. Between 1997 and 2007, there were generally between 16,000 and 19,000 annual filings. But since 2008, the number of complaints has soared to 23,000 to 25,000 a year. Federal law says that it's illegal for an employer with 20 or more employees to discriminate against employees 40 or older based on their age.

Meanwhile, it's gotten harder and harder to win an age-discrimination suit. Not that there aren't successes. Last July, Debra Moreno of Maui, a 54-year-old office coordinator of a Honolulu-based health care company, won a $193,236 judgment in U.S. District Court. Despite excellent ratings by her manager as a thorough and efficient worker, Moreno was fired in 2008. She subsequently learned that the company's owner had made disparaging remarks to other employees about her, saying that she looked "like a bag of bones" and "sounds old on the telephone." Those remarks helped Moreno win her suit.

Few employers say something as intemperate as the comments made by Moreno's boss, which is why proving an age discrimination case is so difficult. "There are always extreme cases where the employer behaves in a gross or offensive fashion," says Pearl Zuchlewski, a New York-based employment lawyer. "But most employers know how to cover their tracks."

More: Nine Signs of Age Discrimination

Why Winning a Case Has Become Harder
Several court decisions have made the road to winning even harder. Although companies can fire any employee at will, it used to be that if you were terminated to save the firm money and were also older, there was an inference of age discrimination since senior staffers tend to be paid higher wages. As a result, courts might have ruled in your favor. Now, Zuchlewski says, the courts consider that when a company is doing a reduction in force it wants to eliminate higher-paid people. "There's no longer a link to age as a clear evidentiary issue," Zuchlewski said.

The 2009 Supreme Court case Gross v. FBL has also made it tougher for plaintiffs to make their cases. In that case, Jack Gross, a vice president at the Iowa-based insurance firm FBL Financial, was among a dozen employees on a list of staffers being demoted. All were older workers -- Gross was 54 at the time -- as well as high performers. Gross sued for age discrimination and won in lower courts, but lost in the Supreme Court, which ruled that a plaintiff must prove that age was the reason for discrimination.

Before Gross v. FBL, if an employer had a solid business reason for firing or demoting an employee, but that was mixed in with age discrimination, the plaintiff had a valid claim. Now, plaintiffs must show age discrimination as the motivating factor. "It elevated the level of proof," Zuchlewski says.

How Filing an Age Discrimination Suit Can Backfire
Even if you have grounds for a suit, career experts say that going to court could be a big mistake. "Suing your employer for age discrimination is basically playing Russian roulette with your career future," says Paul Bernard, an executive coach and frequent writer for Next Avenue. "You burn your bridges and may never get hired again."

Employers tend to see job applicants who have sued for age discrimination as troublemakers who might eventually bring a case against them too, career pros say. "If you've filed an age discrimination suit against your former employer," Bernard says, "you become a high-risk employee to hire."

A lawsuit can also take an enormous emotional toll on you. Bernard says that taking your former employer to court over a perceived age discrimination firing is "a vampire lawsuit – an emotional energy eater." It's also time consuming and can keep you from getting on with your life. "Most people," Zuchlewski says, "want to get another job and not spend years in deposition."

But the biggest reason to hold off filing suit is a pocketbook issue: You may do much better financially by negotiating with your former employer rather than taking the company to court. Making a persuasive case can provide leverage that will enhance your separation agreement and save you the cost of legal expenses, not just attorney fees but the cost of depositions. In New York, for example, a deposition transcript can cost $1,800 dollars a day.

If you decide to sue, be sure you have a case that legal experts see as strong. Chances are, you won't have much of one if you were part of a mass firing. But if you were singled out and your manager or boss has said disparaging things concerning your age, your prospects for winning are better, especially if you have those remarks in writing.

More: Facing Age Bias? Don't Let It Hold You Back

What to Do if You Want to Sue
Here are the legal steps to take if you're considering suing your employer for age discrimination soon after being fired:

1. Meet with a lawyer who specializes in employee discharge suits. and are two websites that list discrimination attorneys by state, city and county.

2. Ask your attorney about anti-discrimination laws and rules where you live. Many states and local jurisdictions have their own system for filing complaints and there are bureaus responsible for enforcing them, known as Fair Employment Practices Agencies, or FEPAs.

In some cases, states and municipalities offer greater protection to workers than federal courts do. Some state age discrimination laws apply to firms with fewer than 20 employees as opposed to the federal rules that apply only to companies with 20 or more staffers.

FEPAs may also have different standards, deadlines and relief options than the EEOC. Under New York state law, for instance, you can sue for back pay and emotional distress, but you can't recover punitive damages or attorney fees.

3. Quickly have your lawyer review everything your former employer asked you to sign before leaving your job. You have 21 days from the time you're fired to consider any severance package an employer has offered and just seven days to change your mind if you agreed to it.

4. Create a written record of any documentation that suggests age discrimination. "I tell clients, if your boss comes in and says, 'You're getting long in the tooth, you should have retired long ago,' you might want to jot that down as a permanent record of the comment," Zuchlewski says.

5. If you and your attorney believe you have a case, file a complaint with the EEOC. The agency has a minimum of 60 days to consider your case. When you go to the EEOC, you are, in effect, asking for the right to sue in federal court. Once you hear back, you'll know whether to keep fighting or just move on and pursue the next step in your career.

Age Discrimination in the Corporate Setting

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working 3 years thus far in a major insurance company, applied 186 times to be promoted with promises from my manager to assist me in moving into a position. Now saying I am 'negative' and need to be more positive. Watching coworkers who cannot meet metrics get promoted while I meet them and do more for my coworkers to help them meet theirs. I am the oldest on the team and have a great understanding of what it takes to be successful and share that with new employees. Now I hear that my manager makes bonuses on the metrics. So I am lining her pocket and being held back?

September 19 2015 at 12:27 PM Report abuse rate up rate down Reply
1 reply to Marace's comment

addition: New employee I helped train moved up in 9 months despite required being with company 1 year, into the same position I applied for. THis is the second time this has happened. I have contacted HUMAN RESOURCES and filed a complaint. I am the only person on my whole team that got Certified and paid for that out of my own pocket. I Play by the rules, so should they.

September 19 2015 at 12:29 PM Report abuse rate up rate down Reply

Several years ago, my friend and I were "let go" from a company. It was a big company, but there were about 40 people in our office. We were two of the hardest working people in the office, but we were the oldest. I overheard the manager of the office talking about how he wanted all of his employees to be 35 years of age and under and I started taking notes on everything. I was 44 and my friend was 46 at the time. On the day we were "let go" because of lack of work (which was a joke), I took all of my notes with me. We filed with the EEOC, we were turned down. We hired an attorney and he got us a nice settlement. But it does take a toll on you. You have to sign a paper saying that you will not apply for a job with that company again and they have to sign a paper stating that they will not tell a prospective employer about the lawsuit. I found out that the manager who let us go was telling everyone calling for a reference for the jobs we applied for was telling them all how we had sued them and be careful if they hired us. We got more money. I think the EEOC just automatically dismisses all age discrimination suits. The only ones they really pay attention to (and, yes, they told me this) are the race discrimination suits. And since there were only two black employees in the office, if I had been black, I probably would have won through the EEOC.

May 08 2013 at 10:49 AM Report abuse rate up rate down Reply

I got $10,000 in an EEOC mediation. The employer paid me off not to go to court after my disability was discriminated against.

May 07 2013 at 8:28 PM Report abuse rate up rate down Reply

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