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Age discrimination tough to prove

Document legally

Gathering the evidence won't be easy, either. Your company's human resources department can't give you a list of laid-off employees -- even if someone there wanted to do so. Turning over that information violates a whole host of laws, including one that protects privacy. If you do persuade your friend in HR to share documents, the court will throw out that evidence because you gathered it illegally.

Once you have the goods, file a charge of age discrimination with the EEOC. All age discrimination claims must start with an EEOC claim, which you don't need an attorney to file. The EEOC is understaffed and overwhelmed, so it can take a couple of years for the claim to work its way through the system, Eglit and others point out. But ultimately, the EEOC will investigate your complaint and find either reasonable cause to believe that age discrimination has occurred or no cause and no basis for a claim.

But Amy Lieberman, a Scottsdale, Ariz., attorney who specializes in mediating discrimination claims, says that a "no cause" finding isn't the end of the story. "You get a right-to-sue letter in either case," she says.

Of course, if you get a severance package from your former employer, you can forget about filing any lawsuits. The EEOC says that if you signed a severance agreement "knowingly and voluntarily," you have waived your right to sue. Your education and the complexity of the statement play a deciding role, the EEOC explains.

Get legal help

If the EEOC offers a finding of reasonable cause, and you have gathered clear-cut evidence -- the memo from the boss saying he's firing everybody older than 40 -- then you may not have much trouble finding an attorney who will take the case based on contingency. That means he'll litigate your claim in return for what usually amounts to half of your winnings. If you don't win, he won't get anything.

But attorneys don't take these cases if they think they are going to be losers. "There are many cases out there where there isn't enough money in the case for a lawyer to take it on," Eglit says. "Unless there is a big potential recovery, the lawyer won't gamble."

If the EEOC doesn't give you a finding of reasonable cause, or you have one but you still can't find an attorney willing to take the case on contingency, and you still want to pursue the issue, you'll have to pay an attorney upfront. And as Eglit points out, "Lawyers start at $200 per hour and go up to $2,000." These are rates most people can't afford, especially when they are unemployed.

Plus, waiting for your case to be heard in court can take years -- and, as Lieberman says, "You may not have years to wait."

Consider mediation

There is another option: mediation. The EEOC offers mediation at no cost. Your former employer has to agree to participate, but Lieberman estimates that 50 percent of employers will accept the invitation to mediate because, if a case like this actually goes to trial, the cost to an employer to defend can be as high as $250,000. Mediation is much cheaper.

You show up with your evidence; the employer presents his; and the mediator decides -- all in a half-day or less. The mediator may award you money, or the agreement may focus on something such as a positive letter of reference.

In her book, "Mediation Success: Get It Out, Get It Over, Get Back to Business," Lieberman advises people that one advantage of mediation is a hearing. Your potential or former employer has to listen to your case and respond. "Mediation is a great way to restore people's dignity," she says.


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