Are you feeling picked on because you are older than your co-workers? Do you suspect you lost your job because you’re older — and because you made more money than younger workers?
Age discrimination is a common complaint. A recent survey for AARP reported 64 percent of respondents thought that people older than 50 face age discrimination in the workplace. Some 34 percent said they had either personally faced age discrimination in the last four years or they know someone who has.
The impact of age discrimination is more than just financial. “Older workers who think they are discriminated against are always so angry and hurt. Their personal identity is tied up in their jobs,” says Howard Eglit, professor of law at Illinois Institute of Technology Chicago-Kent College of Law, and an expert on age discrimination issues.
But feeling like a victim of age discrimination and being able to prove it are two very different things.
Proving age discrimination has never been easy, but in 2009, a U.S. Supreme Court ruling made it even more difficult. In Gross v. FBL Financial Services, the court changed the rules. Supreme Court Justice Clarence Thomas wrote in the majority decision that the employer doesn’t have to show it would have taken action regardless of age, even when an employee has evidence that age was a motivating factor in that decision.
In fact, going forward, workers have to prove that age was the primary factor for discrimination rather than just one factor.
This standard for age discrimination is much harder to prove than the standards for race and gender discrimination, and many people think that it is unfair.
In March, Sens. Tom Harkin, Charles Grassley and Patrick Leahy introduced the Protecting Older Workers Against Discrimination Act, which would amend the Age Discrimination in Employment Act of 1967 to make it easier for workers to prove age discrimination and retaliation.
But Civic Impulse, which tracks legislation and rates its likelihood of passage, assigns the bill a 1 percent chance of being enacted.
So where do you go from here if you think you’ve been a victim of age discrimination?
The best proof catches the boss doing something clearly discriminatory. For instance, as Eglit says, the boss sends out a “really stupid” memo that reads, “Don’t hire anyone over 40” or “We have to get rid of all these old guys and get new blood.”
That’s the kind of proof you need to make the case a slam-dunk. But that kind of clear-cut substantiation doesn’t come around very often. Most of the time, you’ll have to accumulate less dramatic evidence.
In March, the Equal Employment Opportunity Commission, or EEOC, in attempting to clarify when layoffs were discriminatory, focused on the phrase “facially neutral.” Facially neutral means that an action might look neutral, but its impact isn’t.
For instance, an employer that puts into effect a reduction in force that eliminates highly paid employees may have adopted a discriminatory policy because most highly paid workers are older, so the policy is discriminatory despite being “facially neutral.”
If you think you have been a victim of such a policy, attorney Edward Ellis, a shareholder and co-chair of the whistle-blowing and retaliation practice group in the Philadelphia law firm Littler Mendelson, says you have to prove it by identifying that most of the people who were laid off as a result of this policy or a similar one were older.
It will be tough to prove, he says, because layoffs based on “reasonable factors,” even though they hit older people hardest, have been upheld in previous court challenges. But the March decision by EEOC could put the ball in your court, he says.
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.”
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.