The Age Discrimination in Employment Act (ADEA) has been a busy line of cases in my career. A good client early on in my career became a friend as we went through the process together, and it’s something that I feel strongly about.
Age discrimination affects both younger and older workers, but it is only actionable under the ADEA for individuals who are over 40 years old. In other words, you don’t get to sue when someone at work is calling you “young pup” or “youngster.”
The usual framework that you usually use to think about Age Discrimination under the ADEA is the same general framework with which you evaluate most discrimination cases. It’s some version of the test that employment lawyers call the McDonnell Douglastest, made famous by a case against the aerospace company. The test basically goes like this: if a) you’re a member of the protected group and b) you’re meeting your employer’s legitimate job expectations, if you c) suffer and adverse employment action and d) can make a connection between the action and your protected status, then you check all the boxes. This test can’t be applied exactly like this to every situation, but it’s the basic framework.
For example – what if it’s a “failure to hire” case? Then you don’t have the “meeting expectations” part met, so we replace it with something like “were you objectively more qualified than the candidate actually hired,” for example, or perhaps “you were qualified and applied but the prospective employer left the position vacant rather than hiring you.” How the test applies is going to vary from one circumstance to another.
One of the easiest scenarios to recognize is when anyone over 40 (usually more like 50’s or 60’s) is separated while still meeting an employer’s expectations. The employer gives no reason or a generic reason like “restructuring” or “reorganizing” for the separation. Then, a few days or weeks later, the position is given to a 35 year old. This ticks the boxes for the McDonnell Douglastest:
Member of the class protected by the ADEA (over 40 years old);
Meeting employer’s legitimate job expectations (no performance improvement plan, no discipline, duties are completed and business unit is performing well);
Terminated; and
Replaced by a substantially younger employee (this is what creates the “nexus” – the connection between your protected age status and the adverse action). Ordinarily, “substantially younger” means 10+ years younger.
This is the “prima facie” case in that scenario – how you check the boxes for the first part of the case. After you do this, the burden shifts to the employer to state a legitimate non-discriminatory reason for its action. Depending on how the termination happened, that can be hard. If the employer told the employee that it was terminated for a reorganization or restructuring, and no restructuring happened, that sure looks like a lie!
After the prima facie case, if the employer articulates a legitimate non-discriminatory reason for the separation, the burden the shifts BACK to the employee to show that the supposedly non-discriminatory reason is a lie – this is call “pretext” analysis.
If you’re an employee over 40 and face a separation, that’s a rough idea of how to evaluate it, but not one-size-fits-all. For example, what if you’re terminated and you’re replaced by someone only a little bit younger, but you’ve been the victim of “old man” or “old lady” comments that make it clear that your supervisor thinks you can’t do the job anymore (even though you can). That might be the “nexus” that you need to link the adverse action – termination – to your protected status – age.
Or perhaps you aren’t fired, just demoted? Not promoted? Younger person gets the promotion instead of you, even though you’re much more qualified? These all fit into that same basic framework in different ways.
It’s impossible in a blog to hash out every way that the test might apply, but if you think that you fit into this general framework somehow, that’s a good sign that you should talk to an experienced employment lawyer!
