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August 22, 2019Cart

Business

by Fairfield County Business Journal
by FCBJ

How to prove you’re not hired, fired or forced to retire because of your age

If you are over 40 years old, age discrimination at work may start with teasing comments from co-workers like, “Must be nice to be so close to retirement,” but it’s no joke when you lose a job on the basis of your age, not your ability. However, proving that you were a victim of age discrimination in the workplace has become increasingly difficult.

Age discrimination is illegal at any stage of employment, including during hiring, promotions, raises and layoffs. The law also prohibits workplace harassment because of age by co-workers, supervisors or clients.

These protections fall under The Age Discrimination in Employment Act of 1967 (ADEA) that promotes employment of older persons (over age 40) based on their ability rather than age and prohibits arbitrary age discrimination in employment. The ADEA applies to employers that have at least 20 employees. Also prohibited are mandatory retirement ages with a few exemptions, such as airline pilots and public safety workers.

But the 2009 Supreme Court case, Gross v. FBL Financial Services, Inc., raised the bar for proving age discrimination. Instead of merely showing that age was a contributing factor in an employer’s decision to fire, demote or refuse to hire them in the first place, plaintiffs now have to show evidence that age was the only factor in the decision. This has put a higher burden on older workers alleging age discrimination than on those alleging discrimination based on race, sex, national origin or religion.

In Connecticut, lawmakers are taking steps to reduce age discrimination in hiring by proposing Bill No. 6113 to prohibit asking on an employment application about an applicant’s date of birth or date of graduation.

AARP research in 2018 found that more than 60 percent of workers age 45 and older have seen or experienced age discrimination, and 76 percent say they consider age discrimination to be a major obstacle to finding a new job. Also, 1 in 4 older workers have been subjected to negative comments about their age from supervisors or co-workers.

Two pending local cases involve women who say they were let go because of their age despite having received positive work reviews. IBM Sales Director Terry Keebaugh, 57, lost her job and a huge commission. She claims there is a persistent policy of laying off older workers at the company. Professor of business law Sharlene McEvoy, 67, said she was replaced without notice as the director of the pre-law advising program at Fairfield University by a person 30 years younger.

So what can you do if your legal employment rights have been violated?

* File a charge with the Connecticut Commission of Human Rights and Opportunities (CHRO). A claim must be filed within 180 days of the discriminatory act.

  • Save communications like memos, letters, emails and phone messages that contain biased language. Also make note of comments by co-workers that demonstrate age bias against you. For example, “I know it’s harder for people of your generation to understand new technology.”
  • Get a copy of your employment contract (if there is one) and highlight what was not followed to serve as proof of discrimination.
  • Compare how you were treated differently from younger co-workers for promotions, layoffs, etc.
  • Find any prior age discrimination lawsuits against your employer. While they may not prove your case, they may help in a settlement situation.
  • Gather documents related to your salary and fringe benefits, including W-2 and 1099 forms, statements showing 401(k) plan contributions and profit-sharing plans and insurance (life, health and disability).
  • If you think you have been wrongly terminated, have a 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.

In order to have a strong case, you will need evidence that your employer was motivated by discrimination when making an employment decision. You also need to prove that you suffered damages as a result of the discrimination. In addition to lost wages, employees who have been discriminated against can also recover for the loss of benefits like insurance and profit sharing.

Don’t let the complex process of proving age discrimination deter you from seeking justice. Ageism in the workplace can lead to unfair and illegal treatment that can be economically devastating. If you wish to pursue a claim, find a lawyer who will guide you through every step of the process.

Attorney Jonathan Perkins is the founder of Jonathan Perkins Injury Lawyers with offices in Hartford, New Haven, Waterbury, Bridgeport and New London. Formore information visit www.800perkins.com or call 1-800-PERKINS.