To prove age discrimination the employee must prove a negative action was taken on the basis of age. The Age Discrimination in Employment Act (“ADEA“) forbids age discrimination against people who are 40 or older. To prove age discrimination an employee must show that a negative action such as a demotion or firing was on the basis of the employee’s age.
The employee will likely have to meet the standard articulated in the McDonnell Douglas burden-shifting framework. First, the employee must make a prima facie case. The framework articulates that this means the employee must demonstrate he is a member of a protected class, he was qualified for and applied for an available position, despite being qualified he was rejected, and the position remained available after the plaintiff’s rejection and the employer continued to seek applicants. This does not fit every scenario where an employee is pursuing legal action. More commonly showing a prima facie case requires individuals to eliminate the most common, nondiscriminatory reasons for an employer’s action such that discrimination is the only logical conclusion.
Next, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the rejection of the employee. This does not need to be a rational reason even those that are implausible can suffice. This is because the court is looking if the discriminatory purpose was the reason for the adverse action.
Finally, the employee must then be afforded an opportunity to show that the reason from the second step is a pretext and not the true reason for the adverse action. Evidence that may be relevant here includes the employer’s treatment of the employee during the employment, the employer’s reaction to any legitimate civil rights activities, and the employer’s general policy and practice with respect to the age group.
However, there are some industries and positions that are permitted to discriminate on the basis of age because of safety reasons. Examples of these professions include police and firefighters.
If planning to file a claim there are 180 days to file a charge with the Equal Employment Opportunity Commission (“EEOC“) before pursuing legal action. Federal employees, on the other hand, have 45 days to contact an EEOC counselor.
If you have been a victim of age discrimination in the workplace, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.