Prove Age Discrimination in Hiring

When hiring for a job, it is illegal under federal law to discriminate against someone 40 or older on the basis of age. Someone denied a job because of age discrimination can file a complaint with their state or federal employment agency. They may also bring a lawsuit. Successfully proving age discrimination in hiring, however, is difficult. The plaintiff must prove that he or she was discriminated against because of their age. Alternately, they can argue that a neutral hiring policy has a disparate impact on people over 40.

Steps

Understanding the Basics of Age Discrimination

1. Read up on federal law. Federal law prohibits discrimination in hiring on the basis of age when the applicant is 40 or older. The primary motive for refusing to hire someone must have been age. In other words, there cannot be other legitimate reasons mixed in for refusing to hire someone (such as not wanting to pay a higher salary for a more experienced applicant).
   • Federal law does not apply to all employers. Instead, it only applies to employers that have 20 employees or more.
   • It is not illegal for employers to favor older workers over younger workers even if both workers are at least 40 years old.
   • The federal Equal Employment Opportunity Commission (EEOC) has been tasked with the job of investigating charges of age discrimination.
   • The ADEA allows age discrimination in cases when age is recognized as a "bona fide occupational qualification". In other words, an employer must have a very good reason to argue why age matters to do the job.
2. Research state anti-discrimination laws. States may also have their own anti-discrimination laws. These laws can provide protection to employees not covered by the federal law. State law can also apply to employers also covered under the federal law. In that situation, job applicants can choose whether to file a charge with either the federal agency or the state.
   • States have also created their own agencies to investigate charges of age discrimination in hiring. You may want to file a charge with the state agency rather than with the EEOC.
   • To find your state law, perform a basic Internet search. Type “your state” and “age discrimination” into your favorite web browser. If you cannot find anything, then check your state’s Department of Labor website.
   • States may add stronger protections to age discrimination laws not provided under federal law. Many states including the District of Columbia have age discrimination laws to protect younger workers. In these states, if you are 18 or older, your employer cannot discriminate against you for being too young or too old unless age is a bona fide occupational qualification (i.e., it is legal to require bartenders to be 21 or older). Unfortunately, there is no state or federal law that prohibits age discrimination against workers under 18 years old.
3. Understand what you must prove. It is very difficult to prove age discrimination. For example, it is insufficient simply to claim that you were qualified for the job but a younger applicant was hired. Instead, you must either prove that you were not hired “because of” your age or that the employer used a policy that appeared neutral on its face but had a disparate impact on workers over age 40.
   • One reason it is hard to prove that you were not hired “because of” your age is that few employers will openly admit that they discriminated against someone. Absent a confession, you cannot get inside someone’s head. Instead, you will need circumstantial evidence that supports an inference that the person discriminated on the basis of age.
   • It may be easier to show that a neutral policy creates a disparate impact by affecting older workers in a disproportionate manner. For example, an employer might require that secretaries be able to lift 50 pounds, which could affect older applicants more than young ones.
   • For this reason, many age discrimination cases are class action lawsuits. In a class action, a group of similarly situated people sue an employer collectively. They typically use statistical information to show a pattern of discrimination against older applicants. However, an employer can always defend a disparate impact case by claiming that its neutral policy was based on a “reasonable factor other than age” (RFOA).
4. Meet with a lawyer. To understand whether you have a valid age discrimination claim, you should try to meet with a lawyer. An experienced employment attorney can listen to the facts of your case and offer tailored advice.
   • Employment attorneys often represent clients contingency. Under this arrangement, the lawyer agrees not to charge a fee but to take a percentage of the client’s damages award if they win. Because lawyers work on contingency, they are very good at spotting valid age discrimination cases and weeding out frivolous or weak ones.
   • For tips on how to find an employment attorney, see Find an Employment Lawyer.

Gathering Evidence of Discrimination

1. Preserve communications. If you are trying to prove age discrimination in hiring, then you will want all communication that you had with the employer during the hiring process. If you were not promoted to a new job with your current employer, then you should preserve all communications since the date you began working for the company.
   • Preserve any voice mails, emails, letters, or memos.
2. Write down your memories of the interview. You should try to document as best you can all face-to-face comments made during the hiring process. Someone may have let slip a discriminatory comment during the interview process.
3. Get the names of witnesses. Someone might have witnessed or overheard a discriminatory interaction or comment. You should write down the person’s name and contact information. Try to get their personal contact information, such as home phone number or personal email. People often leave jobs. By getting their personal contact information, you can reconnect years down the road when your case finally goes to trial.
4. Use discovery to get internal communications. Once you file a lawsuit, you can use a process called “discovery” to request documents in the possession or control of the employer. With this tool, you can access internal memoranda or communications.
   • For example, an employer might never admit to you that they are not interested in workers over a certain age. However, they might state that fact to another member of management.
   • Companies may also have internal policies against hiring people over a certain age. A discovery subpoena will help you get access to those memoranda or policies. Sometimes internal communications are a “smoking gun” where an employee admits that age is the dominant reason someone is not hired.
   • Your attorney can also ask questions of the employer during discovery, either in a deposition or by using written Interrogatories. Although these can be useful techniques for getting information, you shouldn’t expect an employer to admit in a deposition to discriminating on the basis of age.
5. Check if the employer has been sued before. If the company has been previously sued for age discrimination, then this fact could work in your favor. It tends to show a culture of discrimination.
   • Your attorney can research previous lawsuits as well as charges filed with federal and state agencies. Also, your attorney should be able to compel the production of this information during discovery.
   • Even if you ultimately cannot use this information at trial, an employer who has been sued for age discrimination before may be more willing to settle your case against it.

Filing a Charge with the EEOC

1. Choose an office to report to. You may file a charge with either the federal government’s Equal Employment Opportunity Commission (EEOC) or with an equivalent agency in your state. Typically, state agencies afford greater protections than the EEOC. For example, some state laws prohibit age discrimination against those younger than 40.
   • A charge filed with one office is automatically filed with the other office. Accordingly, if you file with the EEOC, then the charge will be shared with your state agency.
2. File a charge with the EEOC. You can file a charge in person by visiting any of the EEOC’s 53 field offices. A map at the EEOC website shows the location of its field offices. Call the office nearest to you and ask if you need to schedule an appointment or if walk-in appointments are acceptable.
3. Write a letter to the EEOC. You may also file a charge by mailing a letter to the EEOC. This is a helpful option if no field office is near you. Be sure to include the following information in your letter:
   • your name, address, and telephone number
   • your employer’s name, address, and telephone number
   • the number of employees employed there
   • a short description of the events you believe were discriminatory
   • when the events took place
   • that age discrimination was the motivation for the discriminatory events
   • your signature
4. File the charge with your state agency instead. If there is a state agency, then you have the option of filing with it. The process varies by state. In California, for example, you must first file a “pre-complaint inquiry” with the Department of Fair Employment and Housing Office (DFEH). There are four ways to do so:
   • Call 800-884-1684 (or 800-884-1684 if deaf or hard of hearing).
   • Print out and mail an Inquiry form to a DFEH office.
   • Complete the Inquiry form and email it to contact.center@dfeh.ca.gov.

Proving Age Discrimination in Court

1. Bring suit at the appropriate time. You must first file a charge with the EEOC or an appropriate state agency before you can sue the employer. Once you file your charge, you can sue at any time after 60 days have passed from the date you filed your charge. However, you must file suit before the passage of 90 days since the completion of the agency’s investigation.
2. Prepare witnesses and documentary exhibits. At trial, you will prove age discrimination in hiring by presenting evidence. Evidence will primarily take two forms: witnesses and documentary exhibits. You and your lawyer should look over the evidence you gathered and decide which evidence is most compelling.
   • If you are worried that a witness might not show up to trial, then you can get a subpoena which commands the witness to appear. Your lawyer can get subpoenas from the court clerk. Once completed, your lawyer will schedule to have the subpoenas served on the witnesses.
3. Prove disparate treatment. You can win an age discrimination suit at trial by showing that the employer refused to hire you “because of” your age. Disparate treatment is intentional discrimination.
   • To win a disparate treatment case, you will need to prove that you are 40 or older and were qualified for the job. Furthermore, you must show that you were not hired but that someone under 40 was.
   • Once you prove all of these elements, then the burden shifts to the defendant (the employer) to prove a legitimate reason for not hiring you. For example, the employer could claim that the person it hired had more relevant experience. If the employer meets that burden, then you must show that the “legitimate reason” is actually a pretext and that the real motivation was age discrimination.
4. Prove disparate impact. To win a disparate impact case, you must show that the employer’s neutral policy nevertheless had a disproportionate impact on job applicants 40 and older. Disparate impact claims often rely on statistical evidence. For example, a survey showing hiring trends over 10 years could show that 90% of the employees hired were under 40.
   • If you show disparate impact, then the employer must show that the negative impact is based on a reasonable factor other than age.
   • The court will look at many different things to determine what is a reasonable factor other than age. For example, a reasonable business factor is one reasonably designed and administered to achieve a “legitimate business purpose.” For example, a police department might require applicants to pass a physical fitness test. This test would probably qualify as a legitimate business purpose, since it measures strength and speed, which are necessary for the job.
   • However, if an employer used a physical fitness exam when hiring accountants, then the test is unlikely to serve a legitimate business purpose, as speed and strength are not traits necessary for accountants.

Tips

• You should think carefully before bringing an age discrimination lawsuit. Once you file a lawsuit, it is public knowledge. Future employers might not want to take a chance on hiring you if they feel that you are too litigious.
• Also be open to mediation or settlement. After you file a charge, the EEOC may contact you and the employer to propose mediation. Mediation is a way to resolve disputes informally without going to trial. You should talk to your attorney about mediation if that interests you.

Warnings

• You shouldn’t wait too long to pursue an age discrimination claim. If you are a federal employee, you only have 45 days from the challenged event to file a claim with the EEOC. All others have at least 180 days (or more, if your state law provides for more). In any event, if you think you have been the victim of age discrimination, then you should contact a lawyer quickly.

References

See also

• Explain a Disability on a Job Application Form
• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Verify Rehab Treatment for an Employee
• Handle Disciplinary Actions
• Claim Weight Discrimination
• Know if You Should Sign a Covenant Not to Sue
• Defend Yourself in a Wrongful Termination Lawsuit
• File Charges With EEOC

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