If you decide to terminate an older employee and hire a younger replacement, assume that you will be sued for age discrimination. Plaintiffs have only a very low bar to clear to launch a costly and time-consuming lawsuit. To get through the first phase of litigation, all a terminated employee has to do is prove he was qualified for the job, was over age 40, was discharged and was replaced by a younger worker.
Fortunately, it’s easy to raise the bar. Just prove there was some legitimate reason for the termination.
Recent case: George was 75 years old when he was fired from his position as police chief of a small Pennsylvania town, where he had served for 23 years. He had an exemplary employment history with no discipline or reprimands.
When a town official asked him when he was planning to retire, George said he wasn’t interested. Shortly after, George was terminated and replaced by a 44-year-old.
George sued, alleging that he was the victim of age discrimination.
The town argued that George had to prove that his age “actually played a role in the employer’s decision-making process” and that “age was the ‘but-for’ cause of the challenged employer decision.”
The court said the town didn’t understand its legal burden. Once George showed that he was qualified for the job, was over age 40 and had been replaced by someone substantially younger, the town had to come up with a legitimate reason why it fired George. It couldn’t—and now George has what amounts to a slam-dunk case. The only question: How big will the damages be? (Andras v. Borough of Laceyville, No. 03-14-CV-2094, MD PA, 2015)