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Age discrimination is hard to prove—But retaliation isn’t

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in Discrimination and Harassment,Employment Law,Firing,Human Resources

One of the hardest discrimination claims for employees to prove is age discrimination under the Age Discrimination in Employment Act (ADEA).

It takes four “yes” answers to make the claim hold up in court: (1) Was the employee at least 40 years old? (2) Did he suffer an adverse employment decision? (3) Was he otherwise qualified for the position? (4) And—this is the crucial one—did a younger worker replace him or was a younger, similarly situated worker treated more favorably? Getting four “yes” answers is hard to do.

Retaliation is a much easier case to make. All the employee has to prove is that he complained about discrimination and was punished for doing so.

Recent case:
Charles Mickey spent most of his working life at Zeidler Tool and Die Company. When the business experienced a downturn, he lost benefits and worked on a reduced salary. Eventually, Mickey filed an EEOC complaint alleging age discrimination.

The EEOC mailed the owner a copy of the complaint. When the owner came in on Monday morning, he read the document. He immediately called Mickey into his office and fired him, demanding that he remove his belongings and leave. The owner blamed poor business and Mickey’s performance for the move.

Mickey added retaliation to his EEOC complaint. The trial court dismissed the case, but the 6th Circuit Court of Appeals partially reinstated it. Although it found no age discrimination, it said there was evidence of retaliation. In fact, the court said the two events—the owner discovering the EEOC complaint and Mickey’s firing—were so closely linked in time that it was almost a foregone conclusion that one led to the other. A jury will decide whether that is what happened. (Mickey v. Zeidler Tool and Die, No. 06-1960, 6th Cir., 2008)

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