Workplace discrimination..any lawyers here?

[Flatbutt1]

Can anyone one here advise me on real world burden of proof for workplace discrimination? I have been passed over four times now for someone younger and less experienced. Further the company has been trying to put more women into management to "correct" that deficiency.

I am 55 years old, nearly 30 years experience in the industry and six in my immediate job. So what would i need to do to prove discrimination?

Any advice is appreciated.

[stomachmonkey]

First you need to find out why you were passed over.

It will affect how you should proceed.

[JeremyD]

And good luck if you are a 55 year old white male - proving discrimination is tough - reverse discrimination is next to impossible.

BTW I work in the employment industry

[widgeon13]

If you haven't received superior reviews and top rank among your peers there is no way of proving discrimination, they will just say you were not the most qualified for the job. My comment is not meant to be negative toward you since I don't know you just the facts of life in the HR world.

It would have to be blatant and most obvious in order to win a case as a white, 55 year old male. You probably already make more than the person going into the better job anyway.

Ask your superior why you did not get the job, he should feel some obligation to tell you as to why you were not chosen, then you can work on those weaknesses.

[the]

you don't need to prove reverse discrimination, at 55 years old, you are in a protected class for age discrimination purposes.

[Dixie]

Maybe this will make you feel better...
I was poised this question at my last internal interview, "Why do you want to apply for this position at your age?"

Ouch…

And I'm still years short of 50.

[sammyg2]

If you were a member of a minority or gay you wouldn't have to prove anything. they would just take your word for it.
But being a white male, it would be almost impossible to prove anything.
it seems like it's OK to discriminate against white males, it's called making up for all the injustices of the past of which you had nothing to do with.

[the]

Like a minority or a gay, at his age he is a member of a federally protected class of people for employment discrimination purposes.

There's lots of ways to prove discrimination. It can be either directly, like you heard them say you were too old, or, more commonly, indirectly, by showing statistics, your qualifications v. there's, etc.

Here's the most impt piece of advice: If you are going to act, you need to act quickly. The statutes of limitation for age discrimination claims are VERY short. That is almost always one of the employers best and most effective defenses, particularly these days in light of a recent ruling by the US Supreme Court. If you think you want to pursue it, see a lawyer right away.

[MRM]

Lots of bad advice here. You are a protected class under federal law. (Being gay is not. Some states protect sexual preference but not all.) Proving age discrimination usually takes some overt manifestation, such as asking "Why do you want to apply for this job at your age." That's actionable age discrimination. However, it is possible to prove age discrimination without overt evidence, it's just a lot harder. Then there are possible implied contract claims, the employment at will doctrine, just a myriad of issues possible issues to consider. The only way you can know if you have a case is to contact a good employment lawyer and give him access to your employment file. But as you consider suing your employer, ask yourself what your career is going to be worth after you sue, whether you win or not.

[gr8fl4porsche]

I was going to say a lot of what MRM said. My wife's 50 yr old white male coworker sued his former employer for age discrimination, won and now has his old job back. She works for a major health care system. Most of his 'points' in the lawsuit were completely fabricated but once it gets to a mediator/judge, it's now a case of he said - she said.

Document, document, document - anything written down in a work journal is most likely admissible as proof.

[JeremyD]

Originally Posted by the

you don't need to prove reverse discrimination, at 55 years old, you are in a protected class for age discrimination purposes.

True - but again I will say that it is tough to prove and as a white 55 year old man - protected class or not - (and you are if you are over 40 btw) - the "system" does not give much love to over 40 year old white guys.

Again, your mileage may differ. If you were a women - better - if you are an over 40 woman - even better. if you are an over 40 minority woman - even better yet.

[Mothy]

Always remember - actions have consequences. And at 55 those consequences can be far more influential on the lifestyle you enjoy today.

The only things I would be asking is:
a) do I enjoy working in my current role?
b) what would happen if I won?
c) what would happen if I lost?

Only when you have those answers should you start anything. Remember that trying to find a job as an unemployed 55yr old can be tough.

Tim (staring at 50)

[Dueller]

Try www.eeoc.gov

You are protected from retaliation if you file a complaint. Generally speaking you have 180 days from the date of discriminatrory act of your employer. However if there is a pattern that can be established the last act can "relate back" to other acts outside the 180 day period.

That being said, I would first contact the immediate supervisor to resolve the issue before filing an EEOc complaint.

[Rick Lee]

In my mere 10-12 yrs. in the adult workplace, I have found performance reviews to be worthless and often pre-decided in order to justify some other action. My first job's perf. review was a rubber stamped "excellent", because the big boss told all his directors to fire anyone who got less than "excellent". Obviously, not everyone could be excellent, but directors didn't want to fire large numbers of valuable people.

In another job, though I was regularly doubling or tripling my monthly quota, never calling in sick, basically doing a near perfect job, I was given a "satisfactory" because the parent company told my boss to do that for everyone so they wouldn't have to give raises that year. One girl, who I'd say ranked below me in performance, got an excellent because it had been pre-decided that she needed a raise or she'd bolt and they didn't want to lose her. When I got an offer from Audi for far more than I was actually making at the job that rated me as satisfactory, I went to give my two weeks notice and got an instant 30% raise to keep me there.

[MRM]

The burden of proof is the McDonald Douglas test of shifting burdens. First you have to prove membership in a protected class and an adverse job action. Second, the burden shifts to the employer to show a nondisciminatory basis for the adverse job action. Third, you have to prove the proffered nondiscrimantory basis is a pretext for a discriminatory decision.

It works like this. You are 55 years old and get better job reviews and raises than anyone else in your position. A week before you hit your magic plateau for fully vested retirement you get laid off and a 25 year old gets put in your place. You sue and satisfy the first prong of the test because you are in a protected age class and have been replaced by a younger worker. The burden shifts to the employer, who profers the age-neutral explanation that you were laid off, not because you are old, but because you are expensive and the 25 year old was willing to do almost as good of a job for $35,000 a year less, and with minimal retirement expense. The burden then shifts back to the employee who gets a copy of his employment file and finds a post-it note on his latest evaluation in his VP's handwriting that says: "Joe, I thought I told you to get rid of all these dinasours. Get rid of Mike now and get some new life in your division." That's an overt act that is prima facie age discrimintation. Without the overt act you have a hard time proving age discrimination.

[the]

I'm not a lawyer, but I have some real world experience with these kinds of claims as a former business owner with far too many employees.

There is the issue of proving the claim at trial, but the reality is most of these cases settle. Your case, IMO, would look to have decent settlement value because you will be able to show membership in a protected class (you are in b/c of your age), and it seems adverse job actions have occurred (you have been looked over in favor of younger, less experienced and perhaps less qualified people four times).

Bingo, you have a claim that the company is going to have to take seriously, because it will survive summary judgment and other pre-trial procedures, and will get to a jury, if you want it to. They know that, and know that a jury is a crap shoot, and there are significant costs of getting it there, too.

so the claim would likely have some settlement value.

Whether you would want to go down that road would need some analysis, how much you like the job, want to stay, how strong you feel the claim is, what other evidence to support it, the personality of the decision-makers at the company and how they would respond to the claim (settling type or fighting type?), insurance coverage issues (that's a big one), and a bunch of other things.

[Superman]

I worked at our local Labor department, and was aware of the calls handled by that staff where a worker felt unfairness. The simple advice we gave them is that there is nothing in labor law that would regulate or restrict these management decisions. An employer can arrive at work in the morning and announce that they no longer favor moustaches. Everyone with a moustache is fired. "Employment at will" is the theory that the employer "owns" the jobs and can give them and take them away at will. Erosion of the employment-at-will doctrine means that job incumbents have some ownership of the jobs, requiring management to offer some rational justification for termination decisions.

At any rate, staff would advice callers that the only limits to employers' perview in these decisions is that they are not free to deny basic human rights. They cannot discriminate on the basis of religion, ethnicity, etc. We would advise the caller that if they feel there is a record that shows there has been a human rights violation, then they should call the Human Rights Commission. For example, if the employer writes on the termination slip "Fired because she was a Black, Muslim woman", then the terminated worker would have a pretty interesting case.

But employers are rarely that stupid. And frankly, according to my understanding, if the employer says the evaluation process was fair and so-and-so just didn't score as well as the other person, that's a successful defense. Again, according to my understanding, courts don't just punish employers because maybe, possibly, they might have considered race or religion. Nope. Courts punish employers when they conclude the employer DID violate someone's human rights.

Unless of course, you are an attorney who thinks they can kick anybody's ass in court.

[Mike_Lettrich]

MRM's description of the generalities of age discrimination law is accurate. I'll try to elaborate on it a bit further, but please understand that every factual scenario is different, and the legal standards to be applied can and will vary somewhat from federal circuit to federal circuit. You will really need to speak with a lawyer in your area, so the following is not legal advice for you or anyone else to rely upon.

With that disclaimer, here are the basic principles of federal age discrimination law under the Age Discrimination in Employment Act (ADEA):

The ADEA prohibits discrimination against workers over the age of forty because of their age. The ADEA grants persons over the age of 40 the right not to be discriminated against in employment because of their age.
In an ADEA claim, a plaintiff needs to prove that he is: (1) over the age of 40, (2) qualified for the position in question, (3) rejected for the position, and that (4) the position was filled by a sufficiently younger person to permit an inference of age discrimination. (These elements vary depending on the circumstances, such as a reduction in force. That is why you need to speak with an employment lawyer).

Proof of these elements can be shown by direct evidence or circumstantial evidence. (“direct evidence" means evidence sufficient to allow the jury to find that the decision makers placed substantial negative reliance on the plaintiff's age in reaching their decision, and that such evidence leads not only to a ready logical inference of bias, but also to a rational presumption that the person expressing bias acted on it).

If there is no direct evidence, discrimination can be proven under the McDonnell-Douglas test. Under this test, a plaintiff must first show a prima facie claim by establishing the four elements of an ADEA claim as noted above. If the plaintiff can do so, then the burden shifts to the employer, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the discharge. In other words, that age was not a substantial factor in their decision. If the employer can't show a legitimate, non-discriminatory reason for their actions, then the plaintiff wins.

But if the defendant employer satisfies this burden, then the burden of production shifts back to the plaintiff to proffer evidence from which a jury could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In other words, if the plaintiff can shed sufficient doubt as to at least some of the reasons given by the employer, a jury can find that the employer is being less than truthful, and may find that the employer is lying about the non-discriminatory reasons for its actions, and find that the the real reason for the employer's decision was unlawful age discrimination.

Further, if an employee files an age discrimination case in good faith, the employee may not be retaliated against by the employer even if the employee ultimately loses his discrimination claim. That is called a "retaliation" claim.

Race and sex may also be improper criteria for a decision to pass a worker over for a promotion. The laws related to those types of claims were generally set up to prohibit discrimination against minorities and women. There are "reverse gender discrimination" claims where males are discriminated against because they are men. These are complicated claims. An employment lawyer could explain those to you as well.

Hope this thumbnail sketch of ADEA law was helpful. But these laws are complicated, and can vary considerably depending on the facts and circumstances of each case. If you want to know if you have a claim, I would strongly recommend that you speak with a lawyer who specializes in this kind of work.

[Flatbutt1]

thanks everyone, there's some really great advice given here. I will speak to an EEOC lawyer because there is definitely some sort of agenda going on in the office. I know it will be tough to prove, but I've got 10 years in the company, nothing but excellent performance reviews, and I'vd been passed over three times in favor of a younger, less experienced woman.

I'll let you know what happens.