Age Discrimination: Can You Prove It?

The Age Discrimination in Employment Act (ADEA), enacted in 1967, protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants.

Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

But “protection” doesn’t necessarily mean a plaintiff will win his case.  Until recently, employer’s have had the upper hand in these discrimination cases.


With the current recession — and with the changing face of retirees — there’s been a steady increase in the number of Age Discrimination claims and more and more Age Discrimination suits are being filed.  In New York alone, there was a 33% increase in the number of claims filed.

There’s no question that there are more claims filed now than there used to be.  But is actual age discrimination on the rise, or are we simply now forced to take action when we otherwise may have turned the other cheek?  Was there a time when a firing or lay-off resulted in “an opportunity to retire” in spite of suspected Age Discrimination, when retirement was a feasible financial option?  Do we now need the income so badly that we pursue whatever option is available to us, even if it means an ADEA claim?

I don’t know the answers to these questions, but they are worthy of discussion and analysis.


If you think you’ve been the victim of discriminatory practices, you’ll need to decide (with your attorney) whether to pursue a state or a Federal claim, and you’ll need to take the necessary steps to preserve your rights.

While each state in the union has its own laws, there is generally a Division of Human Rights or similarly titled state entity which handles Age Discrimination complaints.  The process is usually multi-faceted and can involve negotiations between the two sides, or a hearing in front of an administrative law judge who then makes a final decision.

Not every age discrimination claim is brought to the relevant state agency, however.  Some matters are handled entirely in the civil court system.

On the Federal side of the isle, we have the Equal Opportunity Employment Commission (EEOC).  It deals with claims in a similar manner. And those who allege age discrimination can still pursue their case in court if they are unsuccessful with either agency. Cases cannot be brought to a federal court unless the litigant first submitted a claim to the EEOC or a similar state agency, but there is no such restriction for filing an age discrimination suit in state court.

Your attorney will advise you on which agency he or she believes is the best starting point, and it may be dependent on the particular facts of your case.


Before you hire an attorney, you might want to take a close look at how the court perceives Age Discrimination.  In other words, what does it look like?  When does the court rule that someone has, in fact, been the victim of age discrimination?

First and foremost, it needs to be understood that most employees are non-contractual.  They work for someone without a contract.  As a non-contractual employee, most state law mandates that an employer can fire an employee “for any reason” so long as that reason does not violate a protected right.

Given that an employer can terminate employment for “any” unprotected reason, it’s been a tough case to win.  Proving that the real reason for termination is the employee’s age is an uphill battle, in most instances.  The reason for this is that most employer’s are fully aware they cannot discriminate due to a person’s age, and when they set out to terminate someone they feel is no longer young enough, they’ll come up with any other reason.  Usually, that reason is economic.

The argument goes like this: Why continue to pay a 65 year old employee twice as much as we can pay a 25 year old, when both people are capable of the same job performance?   The fact that age is an issue does not make it discrimination; it’s about the economics.  The 65 year old has earned the higher pay rate, but the employer believes that it can reduce payroll for someone younger to do the same amount of work.

Unless the employee has a contract that specifies otherwise, the employer is free to terminate the 65 year old, replace him with a 25 year old, and call it “good business.”

But what do you do when an employer is hiding behind a non-discriminatory excuse — a pretext — when they make up a reason for termination, or when they suddenly find fault with an employee who otherwise is performing satisfactorily?  And what about a “forced” termination, when an employee is assigned work outside of her scope of employment, work that she can’t possibly perform because of her age?

The factual scenarios are endless, and each case must be viewed in its own context — but the standard by which a court will determine a violation of the ADEA is now more “plaintiff friendly.”


In March, 2010, the EEOC reported a settlement between Red Rock Western Jeep Tours, Inc. and a 75 year old female employee named Ms. Rose.  Rose applied for the job and was offered a position as a reservationist.  She was asked to fill out various forms and return them prior to beginning work, which she did.  She was then asked about her age, to which she responded that she was 75.

After that meeting, Rose did not hear from Red Rock for several days. She sent an e-mail to Red Rock inquiring as to when her start date would be. Red Rock responded that the general manager  and supervisor did not think Rose was “the right person” for the job. Rose responded with an e-mail inquiring as to  how they could make that determination without actually seeing her work product. Rose informed Red Rock that she believed she had been discriminated against on the basis of her age.

In an apparent response to her email, Rose received another offer of employment.  She worked for two days, and was then terminated.

During the two days of employment, Rose was not trained for the position for which she was hired, but was instead sent out on several jeep tours, each of them lasting several hours.  She was then terminated.

The claim was settled for $35,000.00

It’s important to note that this was a settlement and not a court order on the merits.  Why is this important?  Because it’s impossible to know whether a judge or jury would have found sufficient facts upon which to base an Age Discrimination verdict.


Proving an Age Discrimination claim is difficult, but the burden for the plaintiff was recently clarified — and lessened — in a decision handed down by the Tenth Circuit Court of Appeals.  Until this case, court’s were requiring direct evidence of discrimination as well as a “but for” causal connection, making the plaintiff’s burden of proof nearly impossible.

In Jones v. Oklahoma City Public Schools, some important legal distinctions were made, clarifying earlier case law.  In Jones, the court stated that a “but for” test was erroneous and not required by the statute.  Instead, the court held:

The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA (citations omitted). [W]e … have concluded that this causal standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted; emphasis added)

Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ (citations omitted)

[The court] … does not place a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action. (citations omitted; emphasis added)

This new ruling makes it more difficult for an employer to hide behind some other reason for termination, when its employee’s age is, in fact, the deciding factor for the termination.


In McDonnell Douglas v. Green, the court articulated the test by which a discrimination claim is proven, holding that a plaintiff can survive summary judgment by proving circumstantial rather than direct evidence of discrimination:

  1. The plaintiff must first demonstrate a prima facie case of unlawful discrimination;
  2. If she succeeds at this first stage, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason for the adverse employment action;
  3. Then — once the employer advances its reason — the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual (false).

But the question remained as to whether this shifting burden was likewise applicable to Age Discrimination cases.

In Jones, the court joined the majority of other circuits and held that the McDonnell Douglas standard applies to ADEA cases which permits proof of discrimination through a framework of inference and circumstantial evidence.

CONGRESS & AGE DISCRIMINATION: More Help for the Plaintiff

Prior to the Jones decision, but after an earlier decision that through a monkey wrench into discrimination cases [see Gross v. FBL Financial ], Congress jumped into the picture with the introduction of new legislation:  Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756).

If passed, the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

How does this legislation affect the person who has an Age Discrimination case?

POWADA allows a plaintiff to win an age discrimination case by proving that:

  • an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  — even if other factors also motivated the practice, or
  • the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same;
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework;
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases.

Thus, with the enactment of this new legislation, coupled with the Jones decision and consistent rulings in other jurisdictions, the playing field is now more balanced and a wrongfully terminated employee has a fighting chance at proving his claim.


Though I’ve not deeply researched the changing case law between the early 1990’s and now — 2010 — I do know that had the McDonnell Douglas decision been available 20 years ago, I could have made one of my client’s VERY happy.

I won a jury verdict in the amount of $395,000 for a janitor who was wrongfully discharged after filing a worker’s compensation claim.  At that time, all we had was circumstantial evidence, and the Court of Appeals held that this was insufficient.  The trial court was reversed, and we eventually settled for a significantly lower amount.

I knew at the time, though, that eventually the courts would find a way to plug the hole that was allowing employer’s to hide behind a pretext.  I argued at the time, in fact, that only the most ignorant of employers will fail to destroy any direct evidence of discriminatory practices — that they are not going to write in an employee’s file “He’s too old” or “Fire him for filing a worker’s comp claim.”  I argued that evidence of a discriminatory action on the part of an employer was “necessarily indirect.”  But, it was an argument the courts weren’t ready to hear.

Happily, they’ve now come to their senses.

~ Lynda C. Watts

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9 Responses to Age Discrimination: Can You Prove It?

  1. Ray Campbell says:

    As Ms. Watts indicates in her post Age Discrimination: Can You Prove It? there has been a rise in Age discrimination complaints especially in light of the failing economy. Age discrimination can certainly be proven, but as Ms. Watts stated it is best for your attorney to decide whether to pursue the EEO process or bypass it and go directly to civil court.

    I am knowledgeable of an individual who works for a very high profile government contractor on the West Coast. This individual was hired on years ago as the Fire Marshall for several different locations and facility around the town he is employed in. This gentlemen served in the roles of Captain of the local Fire Department for over 20 years, Code Enforcement Inspector with the state and county, Code Enforcement on the East Coast, Fire Captain with the County again and presently as Fire Marshall.

    Recently the company he works for has stripped him from most of his essential duties including supervising staff, timekeeping, making decisions regarding fire code, acting positions (where his deputy, which he hired was placed in charge of him), and have stopped including him in management related decisions. These actions were taken in spite of the fact that he has an excellent performance rating and evaluation, received a pay increase/promotion within the past year and a half, was the sole individual responsible for getting this company through some major inspections by the Federal Government, etc.

    His first and second level managers have also asked him several times over the past couple of months, since just before all this started, “(Name) when are you going to retire? Probably soon, huh?” Sounds like a pretty good set up for a constructive discharge to me. Get someone so frustrated and make the workplace so unbearable you finally quit because you can’t take it anymore. The individual serving as Fire Marshall is in his 60′s and the individual they have been pruning is considerably younger than he is.

    Some things I would highly recommend (my personal opinion) to individuals serving in similar situations:

    1. Make sure you maintain good notes including time, date, location and exact situation as it occurred, word for word if possible.
    2. If you have witnesses make sure you record who they are and how to reach them.
    3. Ensure you are completely familiar with your company/agency EEO process and procedures. Know the statutory time limits for filing complaints of discrimination and when to make EEO contact.
    4. Do not resign from your position until the EEO process is through if at all possible.
    5. Obtain legal counsel to be your advocate as they know how the system works and can best represent you.

    More information is available through the Equal Employment Opportunity Commission’s Website.

    -Ray Campbell –

  2. george thomas says:

    i am 60 years old and a victim of termination at will. any idea when this bill might get amended ? i have a legal law case against my employer. there were 16 other employees over 52 years of age terminated within the past two years. my case is on hold waiting for this bill to be amended ? hr 3721, any idea when ? god bless

  3. Pingback: Dealing with Employment Rejection: A New Approach | Grown-up Living: Careers & More

  4. Ramon says:

    Hmm is anyone else experiencing problems with the pictures on
    this blog loading? I’m trying to determine if its a problem on my end or if it’s the blog.
    Any feedback would be greatly appreciated.

  5. lyndacwatts says:

    Ramon, I just checked the pictures and — from my end — they are all loading fine. The article above, however, does NOT have any pictures. (There is likely an ad at the bottom of the article with a pic or a video, but I have no control over that.) As for pictures that I post with my articles, they are all working fine as of right now. If you are accessing the blog from your “Favorites,” you might try to re-load the page.
    ~Lynda C Watts

  6. I do not even know how I ended up here, but I thought
    this post was good. I don’t know who you are but certainly you’re going to a famous blogger if you aren’t already 😉 Cheers!

  7. Kian says:

    It’s the best time to make some plans for the future and it is time to
    be happy. I have read this post and if I could I desire to
    suggest you some interesting things or suggestions. Perhaps you could write next
    articles referring to this article. I wish to read even more
    things about it!

    • lyndacwatts says:

      Thank you for your comment and suggestion. Yes, I’m happy to write more content about Age Discrimination, however my expertise on the subject is limited to the laws of the United States.

      Lynda C Watts

  8. Aidan says:

    Touche. Great arguments. Keep up the great work.

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